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EXHIBIT 10.11R
SUBLEASE
1. PARTIES.
This Sublease, dated ___________________, 1997 is made between
DowElanco ("Sublessor"), and IS 14 Inc. ("Sublessee").
2. MASTER LEASE
Sublessor is the lessee under a written lease dated November 23, 1993,
wherein QRE Holding, a California Corporation ("Lessor") leased to
Sublessor the real property located in the City of Roswell, County of
Fulton, State of Georgia, described as 1080 Holcomb Bridge Road -
Roswell Summit, Building 100, Suite 135 ("Master Premises"). Said lease
is herein referred to as the "Master lease" and is attached hereto as
Exhibit "A."
3. PREMISES.
Sublessor hereby subleases to Sublessee on the terms and conditions set
forth in this Sublease the following portion of the Master Premises
("Premises"): Approximately 3,938 square feet, Building 100, Suite 135.
The Sublessee agrees to take the premises "As Is"; and that no tenant
improvement work is to be performed by QRE Holding Company as the
landlord relative to the Sublease.
4. WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee that the Master Lease
has not been amended or modified except as expressly set forth herein,
that Sublessor is not now, and as of the commencement of the Term
hereof will not be, in default or breach of any of the provisions of
the Master Lease, and that Sublessor has no knowledge of any claim by
Lessor that Sublessor is in default or breach of any of the provisions
of the Master Lease.
5. TERM.
The Term of this Sublease shall commence on February 15, 1997,
("Commencement Date"), or when Lessor consents to this Sublease (if
such consent is required under the Master Lease), whichever shall last
occur, and end on November 30, 1998 , ("Termination Date"), unless
otherwise sooner terminated in accordance with the provisions of this
Sublease. In the event the Term commences on a date other than the
Commencement Date, Sublessor and Sublessee shall execute a memorandum
setting forth the actual date of commencement of the Term. Possession
of the Premises ("Possession") shall be delivered to Sublessee on the
commencement of the Term. If for any reason Sublessor does not deliver
Possession to Sublessee on the commencement of the Term, Sublessor
shall not be subject to any liability for such failure, the Termination
Date shall not be extended by the delay, and the validity of this
Sublease shall not be impaired, but rent shall abate until delivery of
Possession. Notwithstanding the foregoing, if Sublessor has not
delivered Possession to Sublessee within ten (10) days after the
Commencement Date, then at any time thereafter and before delivery of
Possession, Sublessee may give written notice to Sublessor of
Sublessee's intention to cancel this Sublease. Said notice shall set
forth an effective date for such cancellation which shall be at least
three (3) days after delivery of said notice to Sublessor. If Sublessor
delivers Possession to Sublessee on or before such effective date, this
Sublease shall remain in full force and effect. If Sublessor fails to
deliver Possession to Sublessee on or before such effective date, this
Sublease shall be canceled, in which case all consideration previously
paid by Sublessee to Sublessor on account of this Sublease shall be
returned to Sublessee, this Sublease shall thereafter be of no further
force or effect, and Sublessor shall have no further liability to
Sublessee on account of such delay or cancellation. If Sublessor
permits Sublessee to take Possession prior to the commencement of the
Term, such early Possession shall not advance the Termination Date and
shall be subject to the provisions of this Sublease, including without
limitation the payment of rent. In addition the Subtenant has no right
to extend the lease term.
6. RENT.
6.1 Minimum Rent. Sublessee shall pay to Sublessor as minimum
rent, without deduction, setoff, notice, or demand, at
Director - Site Operations - DowElanco - 9330 Zionsville Road
- Indianapolis, IN 46268 or at such other place as Sublessor
shall designate from time to time by notice to Sublessee, the
sum of Five Thousand Three Hundred Thirty Two and 71/100
Dollars ($5,332.71) per month, in advance on the first day of
each month of the Term. Sublessee shall pay to Sublessor upon
execution of this Sublease Five Thousand Three Hundred Thirty
Two and 71/100 Dollars ($5,332,71) as rent for March 1997. If
the Term begins or ends on a day other than the first or last
day of a month, the rent for the partial months shall be
prorated on a per diem basis. Additional provisions: Rent
commencement shall begin March 1, 1997.
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7. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this Sublease
the sum of Fifteen Thousand Nine Ninety Eight Hundred and 12/100
Dollars ($15,998.12) as security for Sublessee's faithful performance
of Sublessee's obligations hereunder ("Security Deposit"). If Sublessor
fails to pay rent or other charges when due under this Sublease, or
fails to perform any of its other obligations hereunder, Sublessor may
use or apply all or any portion of the Security Deposit for the payment
of any rent or other amount then due hereunder and unpaid, for the
payment of any other sum for which Sublessor may become obligated by
reason of Sublessee's default or breach, or for any loss or damage
sustained by Sublessor as a result of Sublessee's default or breach. If
Sublessor so uses any portion of the Security Deposit, Sublessee shall,
within ten (10) days after written demand by Sublessor, restore the
Security Deposit to the full amount originally deposited, and
Sublessee's failure to do so shall constitute a default under this
Sublease. Sublessor shall not be required to keep the Security Deposit
separate from its general accounts, and shall have no obligation or
liability for payment of interest on the Security Deposit. In the event
Sublessor assigns its interest in this Sublease, Sublessor shall
deliver to its assignee so much of the Security Deposit as is then held
by Sublessor within (10) days after the Term has expired, or Sublessee
has vacated the Premises, or any final adjustment pursuant to
Subsection 6.2 hereof has been made, whichever shall last occur, and
provided Sublessee is not then in default of any of its obligations
hereunder, the Security Deposit or so much thereof as had not
theretofore been applied by Sublessor, shall be applied to the last two
months of the term, if any, of Sublessee's interest hereunder.
8. USE OF PREMISES.
The Premises shall be used and occupied only for general office
purpose, and for no other use or purpose.
9. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet all or any
part of the Premises without the prior written consent of Sublessor
which consent shall not be unreasonably withheld (and the consent of
Lessor, if such is required under the term of the Master Lease).
10. OTHER PROVISIONS OF SUBLEASE.
All applicable terms and conditions of the Master Lease are
incorporated into and made a part of this Sublease as if Sublessor were
the lessor thereunder, Sublessee the lessee thereunder, and the
Premises the Master Premises, except for the following: None*.
Sublessee assumes and agrees to perform the lessee's obligations under
the Master Lease during the Term to the extent that such obligations
are applicable to the Premises, except that the obligation to pay rent
to Lessor under the Master Lease shall be considered performed by
Sublessee to the extent and in the amount rent is paid to Sublessor in
accordance with Section 6 of this Sublease. Sublessee shall not commit
or suffer any act or omission that will violate any of the provisions
of the Master Lease. Sublessor shall exercise due diligence in
attempting to cause Lessor to perform its obligations under the Master
Lease for the benefit of Sublessee. If the Master Lease terminates,
this Sublease shall terminate and the parties shall be relieved of any
further liability or obligation under this Sublease, provided however,
that if the Master Lease terminates as a result of a default or breach
by Sublessor or Sublessee under this Sublease and/or the Master Lease,
then the defaulting party shall be liable to the nondefaulting party
for the damage suffered as a result of such termination.
Notwithstanding the foregoing, if the Master Lease gives Sublessor any
right to terminate the Master Lease in the event of the partial or
total damage, destruction, or condemnation of the Master Premises or
the building or project of which the Master Premises are a part, the
exercise of such right by Sublessor shall not constitute a default or
breach hereunder.
*Except as specifically set forth within this sublease, this sublease is not to
be construed as an amendment to the Lease Agreement in any report.
11. ATTORNEYS' FEES.
If Sublessor, Sublessee, or Broker shall commence an action against the
other arising out of or in connection with this Sublease, the
prevailing party shall be entitled to recover its costs of suit and
reasonable attorney's fees.
12. AGENCY DISCLOSURE:
Sublessor and Sublessee each warrant that they have dealt with no other
real estate broker in connection with this transaction except: CB
COMMERCIAL REAL ESTATE GROUP, INC., who represents the Sublessor and
Richard Bowers & Co. who represents Sublessee. In the event that CB
COMMERCIAL REAL ESTATE GROUP, INC. represents both Sublessor and
Sublessee, Sublessor
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and Sublessee hereby confirm that they were timely advised of the dual
representation and that they consent to the same, and that they do not
expect said broker to disclose to either of them the confidential
information of the other party.
13. COMMISSION.
Upon execution of this Sublease, and consent thereto by Lessor (if such
is under the terms of the Master Lease), Sublessor shall pay Broker a
real estate brokerage commission in accordance with Sublessor's
contract with Broker for the subleasing of the Premises, if any, and
otherwise in the amount of Nine Thousand Eight Hundred Twenty Nine and
96/100 Dollars ($9,829.96), for services rendered in effecting this
Sublease. Broker is hereby made a third party beneficiary of this
Sublease for the purpose of enforcing its right to said commission.
14. NOTICES.
All notices and demands which may or are to be required or permitted to
be given by either party on the other hereunder shall be in writing.
All notices and demands by the Sublessor to Sublessee shall be sent by
United States Mail, postage prepaid, addressed to the Sublessee at the
Premises, and to the address hereinbelow, or to such other place as
Sublessee may from time to time designate in a notice to the Sublessor.
All notices and demands by the Sublessee to Sublessor shall be sent by
United States Mail, postage prepaid, addressed to the Sublessor at the
address set forth herein, and to such other person or place as the
Sublessor may from time to time designate in a notice to the Sublessee.
Copies of any notices that are sent between the Sublessor and Sublessee
should be sent to QRE Holding Company as the Landlord.
To Sublessor: Director-Site Operations-DowElanco-9330-Zionsville
Road-Indianapolis, IN 46268
To Sublessee: 1700 Westlake Avenue North, Suite 400, Seattle,
Washington 98109
15. CONSENT BY LESSOR.
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS CONSENTED TO BY VIA
A LETTER BY THE LESSOR. (DATED ________________).
16. COMPLIANCE.
The parties hereto agree to comply with all applicable federal, state
and local laws, regulations, codes, ordinances and administrative
orders having jurisdiction over the parties, property or the subject
matter of this Agreement, including, but not limited to, the 1964 Civil
Rights Act and all amendments thereto, the Foreign Investment In Real
Property Tax Act, the Comprehensive Environmental Response Compensation
and Liability Act and The Americans With Disabilities Act.
Sublessor: DOWELANCO Sublessee: IS 14, INC.
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By: /s/ Douglas C. Vawter By: /s/ James W. Brown
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Title: Director Site Operations Title: President
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Date: 2/14/97 Date: 2/14/97
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LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor), lessor under the Master Lease, hereby consents to the
foregoing Sublease without waiver of any restriction in the Master Lease
concerning assignment or subletting. Lessor certifies that, as of the date of a
execution hereof, Sublessor is not in default or breach of any of the provisions
of the Master Lease, and that the Master Lease has not been amended or modified
except as expressly set forth in the foregoing Sublease.
Lessor: QRE HOLDING COMPANY, A CALIFORNIA CORPORATION
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By:
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Title:
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By:
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Date:
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CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney. No representation or recommendation is made by Broker as to the legal
sufficiency or tax consequences of this document or the transaction to which it
relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
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SPECIAL STIPULATIONS
Sublessor agrees to sell Sublessee the three (3) existing work stations for
$550.00 each. These work stations will become the property of the Sublessee at
the end of the lease term.
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EXHIBIT A
LEASE AGREEMENT
ROSWELL SUMMIT OFFICE PARK
TABLE OF CONTENTS
ITEM PAGE
---- ----
1. Lease Data and Exhibits 1
2. Premises 2
3. Commencement - Expiration Dates 2
4. Rent 3
5. Security Deposit 3
6. Uses 3
7. Services and Utilities 3
8. Cost of Services and Utilities 5
9. Real Property Taxes 7
10. Improvements 7
11. Care of Premises 7
12. Acceptance of Premises 7
13. Special Improvements 7
14. Access 8
15. Damage or Destruction 8
16. Waiver of Subrogation 8
17. Indemnification and Liability Insurance 9
18. Assignment and Subletting 10
19. Advertising 11
20. Liens and Insolvency 11
21. Defaults 11
22. Quiet Enjoyment 12
23. Priority 12
24. Surrender of Possession 12
25. Removal of Property 12
26. Non-Waiver 12
27. Holdover 12
28. Condemnation 13
29. Notices 13
30. Costs and Attorney's Fees 14
31. Landlord's Liability 14
32. Waiver of Jury Trial 14
33. Estoppel Certificates 14
34. Transfer of Landlord's Interest 15
35. Right to Perform 15
36. Substituted Premises 15
37. Exculpation of Landlord 15
38. Hazardous Waste 15
39. ADA 16
40. General 16
41. Signature Blocks 19
Exhibit "A" - Floorplan
Exhibit "B" - Special Stipulations
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LEASE AGREEMENT
ROSWELL SUMMIT OFFICE PARK
THIS LEASE (the "Lease") made this 23rd day of November, 1993, between
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK ("Landlord"), and DOWELANCO
("Tenant").
As parties thereto, Landlord and Tenant agree that the following terms
as used herein shall have the meanings provided in this Section 1, unless
otherwise specifically modified by provisions of this Lease:
1. LEASE DATA AND EXHIBITS:
1.1 Office Park: ("Park), known as Roswell Summit park situated on
the real property located at 1080 Holcomb Bridge Road,
Roswell, Georgia 30076.
1.2 Premises: Consisting of that area in Building 100 (the
"Building), on the first floor and known as Suite 135 as
outlined on Exhibit A.
1.3 Agreed Areas: As used in this Lease, Landlord and Tenant agree
to the following areas and percentage:
Total rentable area of the Building 63- 286 s.f.
Area of Tenant's Premises 3,516 s.f.
Tenant prorated share of common area 422 s.f.
Tenant total rentable area 3,938 s.f.
Tenant percentage of the Building 6.22 % *
* This percentage shall not vary with the occupancy of the Building.
1.4 Leasehold Improvement Plan Date: September 15, 1993
1.5 Lease Commencement Date: December 1, 1993 or such earlier or
later date as provided In Section 3 hereof ("Commencement
Date").
1.6 Expiration Date: November 30, 1998
1.7 Rent: Rent shall be $4,577.93 per month, which is $54,935.16
per year ("Base Rent"). This Base Rental shall increase in the
second year and each subsequent year by three percent (3%)
compounded annually. Said increases shall be paid on a monthly
basis beginning with the first month of the second year, and
continue for each succeeding year of this Lease. Tenant has
paid to Landlord on the date hereof $4,577.93 to be applied to
the first full month's rent payable plus any prorated month
which is applicable.
1.8 Notices and Payment Address:
Tenant: DowElanco
9330 Zionsville Road
Indianapolis, IN 46268
ATTN: Director, Site Operations
Landlord: The Mutual Life Insurance Company of New York
5775-E Glenridge Drive
Suite 100
Atlanta, GA 30328
ATTN: Regional Vice President
With a copy of all notices to:
ARES
5775-B Glenridge Drive
Suite 220
Atlanta, GA 30328
ATTN: Vice President
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1.9 Exhibits: The following exhibits and riders are made apart of
this Lease:
Exhibit A - Floor plan of Premises
Exhibit B - Special Stipulations
2. PREMISES: Landlord does hereby lease to Tenant, and Tenant does hereby
lease from Landlord, upon the terms and conditions herein set forth,
the Premises described in Section 1.2 hereof and as more particularly
shown on Exhibit A attached hereto and Incorporated herein.
3. COMMENCEMENT - EXPIRATION DATES:
3.1 Lease Commencement Date: The Lease Commencement Date
shall be:
3.1.1 The date specified in Section 1.5 unless notice is
delivered pursuant to Subsection 3.1.2 or unless
Tenant occupies earlier, pursuant to Subsection
3.1.3.
3.1.2 Such earlier or later date as may be specified in a
notice delivered to Tenant at least thirty (30) days
before such date upon which the Premises, together
with the common facilities for access and service
thereto, have been completed; or
3.1.3 If Tenant shall occupy the Premises for Permitted
Uses prior to the date specified In Subsection 1.5 or
in the notice provided under Subsection 3.1.2, the
date of such early occupancy.
3.2 Tenant Obligations: If Tenant's improvements are not completed
on the Lease Commencement Date specified in Section 1.5 or as
provided in Subsection 3.1.2 above, whichever is applicable,
due to the failure of Tenant to fulfill any obligation
pursuant to the terms of this Lease or any Exhibit thereto,
including without limitation Tenant's failure to comply with
the Plan Delivery Date described in section 1.4, the Lease
shall be deemed to have commenced upon the Lease Commencement
Date specified in Section 1.5 or as provided in Subsection
3.1.2 above, as applicable.
3.3 Tenant's Termination Rights: In the event a Lease Commencement
Date as provided in Subsection 3.1.2 above does not occur
within sixty (60) days following the Lease Commencement Date
specified in Section 1.5. Tenant may terminate this Lease by
written notice; provided, however, that such period may at
Landlord's sole option be extended by any period, not to
exceed one (1) year from the Lease Commencement Date specified
in Section 1.5 for delays due to casualties, acts of God,
strikes, shortages of labor or materials or other causes
beyond the reasonable control of Landlord. If the Lease
Commencement Date has not occurred within such extension
period, this Lease shall be deemed null and void and all
rights and obligations of the parties shall terminate.
Termination under this Subsection 3.3 shall be Tenant's sole
remedy and Tenant shall have no other rights or claims
hereunder at law or in equity.
3.4 Confirmation of Commencement Date: When a Lease Commencement
Date as provided in Subsection 3.1.2 and 3.1.3 above has been
established as a later or earlier date than the Lease
Commencement Date provided in Section 1.5 hereof, Landlord
shall confirm the same to Tenant in writing.
3.5 Expiration Date: The Lease shall expire on the date specified
in Section 1.6, except that such date may be extended if an
occupancy later than specified in Section 1.5 occurs and is
confirmed per Section 3.4
4. RENT: Tenant shall pay Landlord the rental stated in Section 1.7 hereof
("Base Rent") and Additional Rent as provided in Sections 8 and 9 and
any other additional payments under this Lease without deduction or
offset, payable in lawful money in the United States in advance on or
before the first day of each month to Landlord at the address noted in
Section 1.8 hereof, or to such other party or at such other place as
Landlord may hereafter from time to time designate in writing. Rent for
any partial month at the beginning or end of the Lease term shall be
prorated.
5. SECURITY DEPOSIT: As security for the full and faithful performance of
every covenant or condition of this Lease to be performed by Tenant,
Tenant has paid to Landlord the Security Deposit of -0- , receipt of
which is hereby acknowledged. If Tenant shall default with respect to
any covenant or condition of this Lease, including but not limited to
the payment of Rent, Additional Rent or any other payment due under
this Lease, Landlord may apply all or part of the Security Deposit to
the payment of any sum in default or any other sum which Landlord may
be required to spend or incur by reason of Tenant's default, or any
other sum which Landlord may in its reasonable discretion deem
necessary to spend or incur by reason of Tenant's default. In such
event, Tenant shall upon demand deposit with Landlord the amount so
applied to replenish said Security Deposit. If Tenant shall have
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fully complied with all of the covenants and conditions of this Lease,
but not otherwise, the amount of the Security Deposit then held by
Landlord shall be repaid to Tenant within thirty (30) days after the
expiration or termination of this Lease. In the event of Tenant's
default, Landlord's right to retain the Security Deposit shall be
deemed to be in addition to any and all other rights and remedies at
law or in equity available to Landlord for Tenant's default under this
Lease. Landlord may, in the event the Security Deposit is depleted, at
Landlord's discretion, apply any unpaid rent received at the time of
the execution of the Lease for the purposes of the deposit.
6. USES. The premises are to be used only for general office purposes
("Permitted Uses"), and for no other business or other purposes without
the written consent of Landlord. No act shall be done by Tenant or
Landlord in or about the Premises that is unlawful or that will
increase the existing rate of insurance on the Building. Tenant or
Landlord shall not commit or allow to be committed any waste upon the
Premises, or any public or private nuisance or other act or thing which
disturbs the quite enjoyment of any other tenant in the Building.
Tenant shall not, without the written consent of Landlord, use any
apparatus, machinery or device in or about the Premises which will
cause any substantial noise or vibration. If any of Tenant's office
machines and equipment should disturb the quite enjoyment of any other
Tenant in the Building, then Tenant shall provide adequate insulation,
or take such other action as may be necessary to eliminate the
disturbance. Tenant shall comply with all laws relating to its use or
occupancy of the premises and shall observe such reasonable rules and
regulations as may be adopted and made available to Tenant by Landlord
from time to time for the safety, care and cleanliness of the Premises
and/or the Building, and for the preservation of good order therein.
7. SERVICES AND UTILITIES:
7.1 Duty of Landlord: As long as Tenant is not in default under
any of the provisions of this Lease, Landlord shall maintain
or cause to be maintained the Premises and the public and
common areas of the Park, such as lobbies, elevators, stairs,
corridors, and restrooms, in reasonably good order and
condition except for damage occasioned by any act or omission
of Tenant, the repair of which damage shall be paid for by
Tenant.
7.2 Hours of Service: From 8:00 a.m. to 6:00 p.m. on weekdays
("Normal Business Hours") and 8:00 a.m. to 1:00 p.m. on
Saturday ("Saturday Mornings") (excluding legal holidays),
Landlord shall furnish the Premises with electricity for
lighting and operation of low power usage office machines,
water, heat and air-conditioning, and elevator service.
7.3 Additional Services: During all other hours, Landlord shall
furnish such service except for heat and air-conditioning. If
requested by Tenant, the Landlord shall furnish heat and
air-conditioning at times other than Normal Business Hours and
Saturday Mornings and the cost of such services as established
by Landlord shall be paid by Tenant as additional payment,
payable as provided in Section 4.
Landlord shall also provide light replacement service for
landlord-furnished lights, toilet room supplies, window
washing at reasonable intervals, and customary building
janitorial service five days per week, Monday through Friday.
No janitorial service shall be provided Saturdays, Sundays, or
legal holidays. The cost of any janitorial service or other
types of services provided or caused to be provided by
Landlord to Tenant which are in addition to the services
ordinarily provided Park Tenants shall be paid in the manner
provided for payment of Rent in Section 4 of this Lease.
7.4 Disclaimer. Landlord shall not be liable for any loss, injury
or damage to property caused by or resulting from any
violation, interruption, or failure of such services due to
any cause whatsoever or from failure to make any repairs or
perform any maintenance. No temporary interruption or failure
of such services incident to making of repairs, alterations,
or improvements, or due to accident, strike, or conditions or
events beyond Landlord's reasonable control shall be deemed an
eviction of Tenant or relieve Tenant from any of Tenant's
obligations hereunder.
7.5 Heat Producing Equipment: Tenant shall not install any
equipment or lights in the Premises which will utilize
electrical service or generate an amount of heat in excess of
that typically used or found in a normal business office use
of the Premises with small business machines, except as
provided to the contrary in Special Stipulations. In the event
Tenant utilizes electrical current in excess of the amount
typically utilized as aforesaid or installs equipment which
generates heat in excess of the amount typically found as
aforesaid, then the Landlord shall have the right to charge
Tenant as additional rent a reasonable sum as reimbursement
for the direct costs of such additional use or service
necessary by reason of Tenant's use. In the event of a
disagreement as to the reasonableness of that amount of such
additional rent, the opinion of a qualified local independent
engineer mutually selected by the Landlord and Tenant shall be
binding upon Landlord and Tenant.
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7.6 Additional Rent: In addition, Tenant shall in advance, on the
first day of each month during the Lease Term, pay Landlord
the reasonable amount estimated by Landlord as the cost of
furnishing electricity directly relating to the leased
premises for the operation of such high power usage equipment
and for the reasonable amount estimated by Landlord as the
cost of operation and maintenance of supplementary
air-conditioning units as necessitated by Tenant's use of
equipment which generates an undue amount of heat. The Rent
stated in Section 1,7 hereof does not include any amount to
cover the cost of furnishing electricity or such additional
air-conditioning for such purposes unless so stated therein,
and such costs shall be paid by Tenant in the manner provided
for payment of Rent in Section 4 of this Lease. Upon ten (10)
days written notice to Tenant of estimated cost and Tenant's
payment to Landlord of such cost, Landlord shall install and
operate at Tenant's cost a monitoring metering system In the
Premises to measure the added demands electricity, heating,
ventilation, and air-conditioning systems resulting from
Tenant's heat generating high power equipment usage, and
after-hours service requirements. In the event of non-payment
of additional payments due from Tenant for any of the above
described additional services, Landlord shall have the same
rights with respect to such non-payment as it has with respect
to the non-payment of Rent hereunder.
8. COST OF SERVICES AND UTILITIES:
8.1 Definitional Terms: In addition to the Rent provided in
Section 1.7 of this Lease, Tenant shall pay to Landlord
increases under this Paragraph 7 as "Additional Rent". These
increases shall be made as provided herein, utilizing the
following definitions:
8.1.1.1 "Cost of Utilities" shall mean all expenses paid or
incurred by Landlord for electricity, water, gas,
sewers, and similar utilities, including any
surcharge imposed for these services.
8.1.1.2 "Other Operational Costs" shall mean all other
expenses paid or incurred by Landlord for
maintaining, operating and repairing the Building and
the personal property used in conjunction therewith,
including, without limitation, the costs of refuse
collection, supplies, janitorial and cleaning
services, window washing, landscape maintenance,
seasonal plantings, services of independent
contractors, compensation (including employment taxes
and fringe benefits) of all persons who perform
duties in connection with the operation, maintenance
and repair of the Building, its equipment and the
Land upon which it is situated, insurance premiums,
licenses, permits and inspection fees, customary
management fees and accounting expenses, real
property taxes, and any other expense or charge
whether or not hereinbefore described which in
accordance with generally accepted accounting and
management practices would be considered an expense
of maintaining, operating or repairing the Buildings.
8.1.1.2.1 Depreciation or amortization of costs
required to be capitalized in accordance
with generally accepted accounting
practices(except Operating Costs shall
include amortization of capital
improvements made subsequent to the initial
development of the building which are
designed that actually improve the
operating efficiency of the Building,
provided that such amortization costs shall
not exceed expected savings In Operating
Costs resulting from such capital
improvements). Any excess shall be included
as an operating expense under 8.1.1.2.
8.1.2 "Calendar Lease Year" shall mean a twelve (12) month
period beginning January 1 and ending December 31.
'Partial Lease Year' shall mean any other period of
time other than a full calendar year.
8.1.3 "Actual Costs" shall mean the actual expenses paid or
incurred by Landlord for Operating costs during any
Calendar Lease Year of the term hereof.
8.1.4 "Estimated Cost Allocable to the Premises" shall mean
Landlord's estimate of cost allocable to the Premises
for the following Calendar Lease Year to be given by
Landlord to Tenant pursuant to Section 8.3 below.
8.2 Base Amount: The base operating costs allocable to the
Tenant's premises shall be the 1994 Actual Costs.
8.3 Additional Rent for Increases in Cost: Thirty (30) days prior to the
commencement of each Calendar lease year (excluding the first Lease
Year) during the term hereof, Landlord shall furnish Tenant a
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written statement of the Estimated Cost Allocable to the Premises for
such Calendar Lease Year, and a calculation of the Additional Rent as
follows: One-twelfth (1/12) of the amount, if any, by which such amount
exceeds the Base Amount shall be Additional Rent payable by Tenant as
provided In Section 4 for each month during such Calendar Lease Year.
If at any time or times during such Calendar Lease Year, it appears to
Landlord that the Estimated or Actual Cost Allocable to the Premises
will vary from Landlord's estimate by more than five percent (5%) on an
annualized basis, Landlord may, by written notice to Tenant, revise its
estimate for such Calendar Lease Year and Additional Rent payments by
Tenant for such Calendar Lease Year shall be based on such revised
estimate.
8.4 Actual Costs: Within ninety (90) days after the close of each Calendar
Lease Year during the term thereof, or as soon thereafter as practical,
Landlord shall deliver to Tenant a written statement setting forth the
Actual Costs allocable to the Premises during the preceding Calendar
lease Year. If such costs for any Calendar Lease Year exceed Estimated
Costs Allocable to the Premises paid by Tenant to Landlord pursuant to
the preceding Section 8.3, then the amount of such overpayment by
Tenant shall be credited by Landlord to the next month's Rent payable
by Tenant.
8.5 Determinations: The determination of Actual Costs and Estimated Costs
shall be made by Landlord to most accurately reflect operating costs
pertaining to the Tenant's premises.
8.6 End of Term: If this Lease shall terminate on a day other than the last
day of a Year, the amount of any adjustment between Estimated Costs
Allocable to the Premises with respect to the Year in which such
termination occurs shall be prorated on the basis which the number of
days from the commencement of such Year in which such termination
occurs to and Including such termination date bears to 365; and any
amount payable by Landlord to Tenant or Tenant to Landlord with respect
to such adjustment shall be payable within thirty (30) days after
delivery by Landlord to Tenant of the statement of Actual Cost
allocable to the Premises with respect to such Partial Year.
8.7 Further Adjustment: In the event the average occupancy level of the
Building in any Lease Year was not ninety-five percent (95%) or more of
full occupancy, then in making the calculations in 8.3 and 8.4 the
Estimated Costs and Actual Costs for such year shall be proportioned
among the Tenants by the Landlord to reflect those costs which would
have occurred had the Building been ninety-five percent (95%) occupied
during such year.
8.8 Base Year: Notwithstanding anything to the contrary in this Section 8
or in Section 9, the Rent payable by Tenant shall in no event be less
than the Rent specified in Section 1.7 of this Lease.
8.9 Non-Payment of Additional Rent: In the event of non-payment of the
Additional Rent hereunder, Landlord shall have the same rights with
respect to such non-payment of Rent hereunder.
9. REAL PROPERTY TAXES:
9.1 "Real Property Taxes": under subsection 8.1.1.2 shall mean
taxes on real property described in Paragraph 2 above and
personal property (including all tenant Improvements which are
paid for by Landlord and not reimbursed by Tenant) which are
assessed as real property and have not been paid by Tenant
directly to the taxing authority; charges and assessments
levied with respect to the Land, the Building, any
improvements, fixtures and equipment, and all other property
of Landlord, real or personal, used directly in the operation
of the Building and located in or on the Building; and any
taxes levied or assessed in addition to or personal property
taxes, or any other tax upon leasing of the Building or rents
paid or collected, but not including any federal or state
income tax or franchise tax.
9.2 Taxes on Improvements Paid for by Tenant and Not Reimbursed by
Landlord: Tenant shall pay, prior to delinquency, all personal
property taxes with respect to all property of Tenant located
on the Premises or the Building. As used in this Section 9.2
and Section 15.4, "Property of Tenant" Includes improvements
which are paid for by Tenant and not reimbursed by Landlord
(and improvements originally paid for by Landlord, the costs
of which are reimbursed by Tenant). In the event property of
Tenant is assessed as real property, Tenant shall pay the
taxes thereon as Additional Rent.
10. IMPROVEMENTS: Upon expiration or sooner termination of this Lease, all
improvements and additions to the Premises, except Tenant's trade
fixtures, shall be deemed property of Landlord.
11. CARE OF PREMISES: Tenant shall take good care of the Premises. Tenant
shall not make any alterations, additions or improvements in or to the
Premises, or make changes to locks on doors, or add, disturb or in any
way change any plumbing or wiring without first obtaining the written
consent of Landlord and, where appropriate, such work will be performed
in accordance with plans and specifications approved by Landlord. All
damages or injury done to the Premises or Park by Tenant or by any
person who may be in or upon the Premises or Park with the express or
implied consent of Tenant, including but not limited to cracking or
breaking of glass of any windows and doors, shall be
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paid for by Tenant and Tenant shall pay for all damage to the
contractors, agents, invitees, licensees, or employees. All normal
repairs necessary to maintain the Premises in a tenantable condition
shall be done by or under the direction of Landlord and at Landlord's
expense except as otherwise provided herein. Landlord shall be the sole
judge as to what repairs are necessary.
12. ACCEPTANCE OF PREMISES: If this Lease shall be entered into prior to
the completion of construction of the Building or completion of Tenant
Improvements in the Premises to be occupied by Tenant, the acceptance
of the Premises by Tenant shall be deferred until receipt by the Tenant
of a Certificate of Occupancy certifying that the Tenant's portion of
the Building Is ready for occupancy. Within five (5) days after receipt
of such notice, Tenant shall make such inspection of the Premises as
Tenant deems appropriate and, except as otherwise notified by Tenant In
writing to Landlord within such period, Tenant shall be deemed to have
accepted the Premises in their then condition. If, as a result of such
inspection, Tenant discovers minor deviations or variations from the
plans and specifications for Tenant's improvements of a nature commonly
found on a "punch list" (as that term is used in the construction
industry), Tenant shall promptly notify Landlord of such deviations.
The existence of such punch list items shall not postpone the
Commencement Date of this Lease nor the obligation of Tenant to pay
Rent.
13. SPECIAL IMPROVEMENTS: Tenant shall reimburse Landlord for Landlord's
cost of making all special improvements requested by Tenant, including
but not limited to counters, partitioning, electrical and telephone
outlets and plumbing connections other than as shown on Exhibit A or
other attachments hereto as being furnished by Landlord; provided,
however, Tenant shall not be obligated to pay for the cost of any
special improvements made without a written request to Tenant by
Landlord.
14. ACCESS: Tenant shall permit Landlord and its agents to enter into and
upon the Premises at all reasonable times for the purpose of inspecting
the Premises or for the purpose of cleaning, repairing, altering or
improving the Premises or the Park. Nothing contained in this Section
14 shall be deemed to impose any obligation upon the Landlord not
expressly stated elsewhere in this Lease. When reasonably necessary
Landlord may temporarily close entrances, doors, corridors, elevators
or other facilities without liability to Tenant by reason of such
closure and without such action by Landlord being construed as an
eviction of Tenant or release of Tenant from the duty of observing and
performing any of the provisions of this Lease. Provided, however, that
such interference is such as to cause the premises to be untenantable
and such interference continues for a period of more than fifteen (15)
consecutive business days, then rent shall abate beginning on the
fifteenth (15th) day. Landlord shall have the right to enter the
Premises with prior written notice for the purpose of showing the
Premises to prospective tenants within the period of 180 days prior to
the expiration or sooner termination of the lease term.
15. DAMAGE OR DESTRUCTION:
15.1 Damage Repair: If the Premises shall be destroyed or rendered
untenantable, (either wholly or in part) by fire or other
casualty, Landlord may, at its option, restore the Premises to
their previous condition, and in the meantime the monthly Rent
shall be abated I n the same proportion as the untenantable
portion of the Premises bears to the whole thereof, and this
Lease shall continue in full force and effect. If the damage
is due directly or indirectly, to the willful misconduct of
Tenant, or its officers, contractors, licensees, agents,
servants, employees, guests, invitees or visitors, there shall
be no abatement of Rent except to the extent Landlord receives
proceeds from any applicable insurance policy to compensate
Landlord for loss of Rent.
15.2 Termination for Material or Uninsured Damages: If the Building
shall be destroyed or damaged by fire or other casualty
insured against under Landlord's fire and extended coverage
insurance policy to the extent that more than ten percent
(10%) thereof is rendered untenantable or in the case the
Building shall be materially destroyed or damaged by any other
casualty other than those covered by such Insurance policy,
notwithstanding that the Tenant Premises may be unaffected
directly by such destruction or damage, Landlord may at its
election, with prior written consent of any first mortgagee,
terminate this Lease by notice In writing to Tenant within
sixty (60) days after such destruction or damage. Such notice
shall be effective thirty (30) days after receipt thereof by
Tenant.
15.3 Business Interruption: Other than rental abatement provided in
Section 15.1 no damages, compensation or claim shall be
payable by Landlord for inconvenience or loss of business
arising from interruption of business, repair or restoration
of the Building or Premises. Landlord shall use its best
efforts to effect repairs and restoration In a prompt manner.
15.4 Insurance: Landlord shall at all times during the term of this
Lease carry a policy of commercial general liability insurance
coverage.
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16. WAIVER OF SUBROGATION: Whether the loss or damage is due to the
negligence of either Landlord or Tenant, their agents or employees or
any other cause, Landlord and Tenant to each herewith and hereby
release and relieve the other, their agents or employees, from
responsibility for, and waive their entire claim of recovery for (I)
any loss or damage to the real or personal property of either located
anywhere in the Park, Including the Buildings themselves, arising out
of or Incident to the occurrence of any of the perils which are covered
by their respective fire Insurance policies, with extended coverage
endorsements, or (II) loss resulting from business Interruption at the
Premises or loss of rental income from the Park, arising out of or
Incident to the occurrence of any of the perils which may be covered by
the business interruption insurance policy and by the loss of rental
Income insurance policy held by Landlord or Tenant. Each party shall
cause its Insurance carriers to consent to such waiver of all rights of
subrogation against the other party. Notwithstanding the foregoing, no
such release shall be effective unless the aforesaid insurance policy
or policies shall expressly permit such a release or contain a waiver
of the carrier's right to be subrogated.
17. INDEMNIFICATION AND TENANT'S INSURANCE:
17.1 Indemnification and Hold Harmless:
(a) Tenant and Landlord hereby indemnify and hold each other
harmless from and against any injury, expense, damage,
liability or claim, imposed on Landlord or Tenant by any
person whomsoever, whether due to damage to the Premises,
claims for injuries to the person or property of any other
tenant of the Building or of any other person in or about the
Building or the Property for any purpose whatsoever, or
administrative or criminal action by a governmental authority,
if such injury, expense, damage, liability or claim results
either directly or indirectly from the act, omission,
negligence, misconduct or breach of any provisions of this
Lease by Tenant or Landlord, the agents, servants, or
employees of Tenant or Landlord, or any other person entering
in the Building or upon the Premises under express or implied
invitation or consent of Tenant or Landlord.
17.2 Tenant's Insurance: Tenant shall carry (at its sole expense
during the Term) (I) fire and extended coverage insurance
insuring Tenant's Improvements to the Premises and any and all
furniture, equipment, supplies, contents and other property
owned, leased, held or possessed by Tenant and contained
therein, such insurance coverage to be in an amount equal to
the full replacement value of such improvements and property,
as such may increase from time to time; (ii) worker's
compensation insurance as required by the laws of the State of
Georgia; and (iii) commercial general liability coverage on an
occurrence basis for injury to or death of a person or persons
and for damage to property occasioned by or arising out of the
condition, use, or occupancy of the Premises, or other
portions of the Building or Property, including contractual
liability and such other coverages and endorsements as are
reasonably required by Landlord, such policy to have a
combined single limit of not less than Three Million and
no/100 Dollars ($3,000,000) for any bodily injury or property
damage occurring as a result of or in connection with the
above. Landlord and Landlord's property manager shall be named
additional insureds on the policies required hereunder and
such policies shall provide that the coverage thereunder is
primary to, and not contributing with, any policy carried by
any such additional insured. Tenant shall have included in all
policies of insurance respectively obtained by it with respect
to the Building or Premises a waiver by the Insurer of all
right of subrogation against the Landlord in connection with
any loss or damage thereby insured against, and Landlord shall
have included in all property insurance policies required to
be maintained by Landlord under this lease a waiver by the
insurer of all right of subrogation against the Tenant in
connection with any loss or damage thereby insured against. To
the full extent permitted by law, Landlord as to its property
insurance policies and Tenant as to all its policies, each
waives all right of recovery against the other for, and agrees
to release the other from liability for, loss or damage to the
extent such loss or damage results from a cause covered by
valid and collectible insurance in effect at the time of such
loss or damage; provided however, that the foregoing release
by each party is conditioned upon the other party's carrying
insurance with the above described waiver of subrogation to
the extent required above, and if such coverage is not
obtained or maintained by either party, then the other party's
foregoing release shall be deemed to be rescinded until such
waiver is either obtained or reinstated. All said insurance
policies shall be carried with companies licensed to do
business in the State of Georgia reasonably satisfactory to
Landlord having. a Best's Rating of A XII or better and shall
be noncancellable and nonamendable except after thirty (30)
days written notice to Landlord. At Landlord's request, duly
executed certificates of such insurance shall be delivered to
Landlord prior to the Commencement Date and at least thirty
(30) days prior to the expiration of each respective policy
term. Landlord shall have the right to periodically review the
coverages required hereunder and in the event Landlord deems
It reasonably necessary to require additional coverage
resulting from inflation or from increases in jury verdicts or
other economic conditions in the jurisdiction where the
Property is located, Tenant shall obtain the coverage
requested by Landlord. Notwithstanding any other provisions in
this Lease to the contrary, Tenant shall have the right to
self-assume or obtain insurance from an insurance
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company that is a wholly owned subsidiary of one (1) of the
two (2) general partners of the Tenant which insurance company
must have a Best's Rating of A XII or better, for all or a
portion of the risk which Tenant is required to provide
insurance coverage under this Lease. In the event Tenant
self-assumes the risk, it will be responsible for all losses
and liabilities to the same extent as if valid and collectible
insurance were in effect. The foregoing provision concerning
the right to self-assume shall only apply to the Tenant as of
the date of this Lease, and to no successors and/or assigns
unless consented to by Landlord in its sole discretion.
18. ASSIGNMENT AND SUBLETTING:
18.1 Assignment of Sublease: Except to a wholly owned subsidiary or
affiliate of Tenant, Tenant shall not sell, assign, mortgage
or transfer this Lease, sublet the Premises or any part
thereof or allow any transfer by operation of law. Tenant
shall, by written notice, advise Landlord of its desire from,
on and after a stated date (which shall not be less than
thirty (30) days nor more than sixty (60) days after the date
of Tenant's notice) to sublet any part or all of the Premises
for any part of the term hereof, and, in such event, Landlord
shall have the right, to be exercised by giving written notice
to Tenant twenty (20) days after receipt of Tenant's notice)
to terminate this Lease as to the portion of the Premises
therein described as of the date stated in Tenant's notice.
Such notice by Tenant shall state the name and address of the
proposed subtenant, and Tenant shall deliver to Landlord a
true and complete copy of the proposed sublease with said
notice. If said notice shall specify all of the Premises, and
Landlord shall give said termination notice with respect
thereto, this Lease shall terminate on the date stated in
Tenant's notice. If, however, this Lease shall terminate
pursuant to the foregoing with respect to less than all the
Premises, the rental (as determined in paragraph 4) and taxes
(as determined in paragraph 9) shall be adjusted on a pro rata
basis to the number of square feet retained by Tenant and this
Lease as so amended shall continue thereafter in full force
and effect. If Landlord, upon receiving said notice by Tenant
with respect to any of the Premises, shall not exercise its
right to terminate, Landlord will not withhold unreasonably
its consent to Tenant's subletting the Premises specific in
said notice provided that all Increases in rent under a
sublease shall be paid to Landlord.
18.2 Sublease Obligations. Any subletting hereunder by Tenant shall
not result in Tenant being released or discharged from any
liability under this Lease. As a condition to Landlord's prior
written consent as provided for in this paragraph, the
subtenant or subtenants shall agree in writing to comply with
and be bound by all of the terms, covenants, conditions,
provisions and agreements of this Lease and Tenant shall
deliver to Landlord, promptly after execution, an executed
copy of each sublease and an agreement of said compliance by
each subtenant.
18.3 Void Assignment or Subletting: Any sale, assignment, mortgage,
or transfer of the Lease or subletting which does not comply
with the provisions of this paragraph shall be void.
19. ADVERTISING: Tenant shall not inscribe any inscription, or post, place,
or in any manner display any sign, graphics, notice, picture, placard
or poster, or any advertising matter whatsoever, anywhere in or about
the Premises or the Park at places visible (either directly or
indirectly as an outline or shadow on a glass pane) from anywhere
outside Tenant's occupied area or at the entrance to Premises without
first obtaining landlord's written consent thereto, such consent to be
at Landlord's sole discretion. Any such consent by Landlord shall be
upon the understanding and condition that Tenant will remove the same
at the expiration or sooner termination of this Lease and Tenant shall
repair any damage to the Premises or the Park caused thereby.
20. LIENS AND INSOLVENCY: Tenant shall keep the Premises and the Park free
from any liens arising out of any work performed, materials ordered or
obligations incurred by or on behalf of Tenant, and Tenant indemnifies
and holds Landlord harmless from any liability for such liens,
including without limitation, liens arising from work performed
pursuant to Exhibit "A'. If Tenant becomes insolvent, voluntarily or
involuntarily bankrupt, or if a receiver or assignee or other
liquidating officer is appointed for the business of Tenant, then
Landlord may terminate this Lease and Tenant's right of possession
under this Lease at Landlord's option 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.
21. DEFAULTS: Time is the essence hereof, and it shall be deemed a default
if Tenant shall violate or breach or fail to keep or perform any
covenant, agreement term or condition of this Lease including without
limitation Tenant's obligation to make any and all payments due under
this Lease, whether or not such payments are defined as Rent or
Additional Rent, and if such default or violation shall continue or
shall not be remedied within at least ten (10) days (or, if no default
in the Rent, Additional Rent or any other payments due hereunder Is
involved, within twenty (20) days) after notice in writing thereof is
given by Landlord to Tenant, specifying the matter claimed to be In
default, Landlord, at its option, may Immediately declare this Lease
terminated, and all Tenant's rights hereunder shall be terminated.
Landlord may re-enter the Premises using such force as may be
reasonably necessary, and repossess
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itself thereof, as of its former estate, and remove all persons and
property from the Premises. Notwithstanding any such re-entry, the
liability of Tenant for the full Rent, Additional Rent and other
payments provided for herein shall not be extinguished for the balance
of this Lease, and Tenant shall make good to Landlord any deficiency
arising from such re-letting of the Premises, plus the costs and
expenses of renovating, altering and reletting the Premises, and
including attorney's and/or broker's fees incident to Landlord's
re-entry or reletting. Tenant shall pay any such deficiency each month
as the amount thereof is ascertained by Landlord or, at Landlord's
option, Landlord may recover, in addition to any other sums, the amount
at the time of judgment the balance of the term after judgment exceeds
the amount thereof which Tenant proves could be reasonably avoided,
discounted at the rate of seven percent (7%). In reletting the
Premises, Landlord may grant Rent concessions and Tenant shall not be
credited therefore. Nothing herein shall be deemed to affect the right
of Landlord to recover for indemnification under Section 16 herein
arising prior to the termination of this Lease. In addition to the
remedies for Tenant default provided herein, Landlord shall have any
and all other rights at law or in equity in the event of Tenant's
default.
22. QUITE ENJOYMENT: So long as Tenant Is not in default under any of the
terms and conditions of this Lease, Tenant may peaceably and quietly
have, hold and enjoy the Premises for the term of this Lease.
23. PRIORITY: Upon demand by Landlord or the holder of any first mortgage
or deed of trust now existing or that may hereafter be placed upon the
Premises or the Park, Tenant will execute the Agreement of
Subordination of Mortgage. In the absence of such Agreement, Tenant
agrees that this Lease shall be subordinate to any first mortgage or
deed of trust now existing or hereafter placed upon the Premises or
Park and that any and all advances to be made thereunder, and to
interest thereon, and all renewals, replacements or extension thereof.
Upon demand by Landlord or any first mortgagee as defined above, Tenant
shall execute and deliver subordination and adornment agreements
satisfactory in form and substance to such first mortgagee.
24. SURRENDER OF POSSESSION: Upon expiration of the term of this Lease,
whether by lapse of time or otherwise, Tenant shall promptly and
peacefully surrender the Premises to Landlord in as good condition as
when received by Tenant from Landlord or as thereafter improved,
reasonable use and wear and tear excepted.
25. REMOVAL OF PROPERTY: Tenant shall remove all of its moveable property
and trade fixtures which can be removed without damage to the Premises
at the termination of this Lease either by expiration of term or other
cause, and shall pay Landlord any damages for injury to the Premises or
Park at the termination of this Lease or when Landlord has the right of
re-entry, Landlord may, in accordance with the provisions of applicable
statutes covering commercial Landlord and Tenant matters, remove and
store said property without liability for loss thereof or damage
thereto, such storage to be for the amount and at the expense of
Tenant. If Tenant shall not pay for a period of thirty (30) days or
more, Landlord may, at its option, sell, or permit to be sold, any or
all such property at public or private sale, in such manner and at such
times and places as Landlord in its sole discretion may deem proper,
with ten (10) days notice to Tenant, or as required under applicable
statues, and shall apply the proceeds of such sale: first, to the cost
and expense of such sale, including reasonable attorney's fees actually
incurred; second, to the payment of the costs or charges for storing
any such property; third, to the payment of any other sums of money
which may then be or thereafter become due Landlord from Tenant under
any of the terms hereof, and fourth, the balance if any, to Tenant.
Tenant shall remain liable for any differences.
26. NON-WAIVER: Waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such
term, covenant, or condition; or of any subsequent breach of the same
or any other term, covenant, or condition of this Lease, other than the
failure of Tenant to pay particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance
of such Rent.
27. HOLDOVER: If Tenant shall, with the written consent of Landlord, hold
over after the expiration of the term of this Lease, such tenancy shall
be deemed a month-to-month tenancy, which tenancy may be terminated as
provided by applicable state law. During such tenancy. Tenant agrees to
pay Landlord the fair market value for the Premises which shall be
reasonably determined by Landlord but in no event less than the amount
paid in the last month of the expired term and to be bound by all of
the terms, covenants and conditions herein specified, so far as
applicable.
28. CONDEMNATION:
28.1 Substantial Taking: If twenty percent (20%) or more of the
Premises or of such portions of the Park as may be required
for the reasonable use of the Premises, are taken by eminent
domain, this Lease shall automatically terminate as of the
date title vests in the condemnation authority, and all Rents,
Additional Rents, and other payment shall be paid to that
date.
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28.2 Partial Taking: In case of a taking of less than twenty
percent (20%) of the Premises, or a portion of the Park not
required for the reasonable use of the Premises, then this
Lease shall continue in full force and effect, and the Rent
shall be equitably reduced based on the proportion by which
the floor area of the Premises is reduced, such rent reduction
to be effective as of the date title to such portion vests in
the condemnation authority.
28.3 Awards and Damages: Landlord reserves all rights to damages to
the Premises for any partial or entire taking by eminent
domain, and Tenant hereby assigns to Landlord any right Tenant
may have to such damages or awards, and Tenant shall make no.
claim against Landlord or the condemning authority for damages
for termination of the leasehold interest or interference with
Tenant's business. Tenant shall have the right, however, to
claim and recover from the condemning authority compensation
for any loss to which Tenant may be out for Tenant's moving
expenses, business interruption or taking of Tenant's personal
property (not including Tenant's leasehold interest) and any
other award to which Tenant may be entitled, provided that
such damages do not reduce the sums otherwise payable by the
condemnor to Landlord.
29. NOTICES:
29.1 Addresses: All notices under this Lease shall be in writing
and deliverable in person or sent by registered or certified
mail to Landlord and to Tenant at the addresses provided in
Section 1.8 and to the holder of any first mortgage or deed of
trust at such place as such holder shall specify to Tenant in
writing; or such other addresses as, may from time to time, be
designated by any such party in writing. Notices mailed as
aforesaid shall be deemed given on the date of such mailing.
29.2 Additional Notice Required of Tenant: Tenant agrees to give to
Mortgagees and/or Trust Deed Holders, by registered mail, a
copy of any notice of default served upon the Landlord,
provided that prior to such notice Tenant has been notified in
writing (by way of Notice of Assignment of Rents and Lease, or
otherwise) of the addresses of such Mortgagees and/or Trust
Deed Holders. Tenant further agrees that if Landlord shall
have failed to cure such default within the time provided for
In this Lease, then the Mortgagees and/or Trust Deed Holders
shall have an additional thirty (30) days within which to cure
such default or if such default cannot be cured within that
time, then such additional time as may be necessary if within
such thirty (30) days any Mortgagee and/or Trust Deed Holder
has commenced and is diligently pursuing the remedies
necessary to cure such default (including but not limited to
commencement of foreclosure proceedings if necessary to affect
such cure), In which event this Lease shall not be terminated
while such remedies are being so diligently pursued.
30. COSTS AND ATTORNEYS FEES: If Tenant or Landlord shall bring any action
for any relief against the other, declaratory or otherwise, arising out
of this Lease, Including any suit by Landlord for the recovery of Rent,
Additional Rent or other payments hereunder, or possession of the
Premises, the losing party shall pay the prevailing party a reasonable
sum for attorneys' fees in such suit, at trial and on appeal, and such
attorneys' fees shall be deemed to have accrued on the commencement of
such action.
31. LANDLORD'S LIABILITY: Anything in this Lease to the contrary
notwithstanding, covenants, undertakings and agreements herein made on
the part of Landlord are made and intended not as personal covenants.
undertakings and agreements or for the purpose of binding Landlord
personally or the assets of Landlord except Landlord's interest in the
Premises and Park, but are made and intended for the purpose of binding
only the Landlord's interest in the Premises and Park, as the same way,
from time to time, be encumbered. No personal liability or personal
responsibility is assumed by, nor shall at any time be asserted or
enforceable against Landlord or its partners or their respective heirs,
legal representatives, successors and assigns on account of the Lease
or on account of any covenant, or undertaking or agreement of Landlord
contained in this Lease.
32. WAIVER OF JURY TRIAL:
TO THE EXTENT PERMITTED BY LAW, IT IS MUTUALLY AGREED BY AND BETWEEN
LANDLORD AND TENANT THAT THE RESPECTIVE PARTIES HERETO SHALL, AND THEY
DO HEREBY, WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BETWEEN THE PARTIES HERETO OR THEIR SUCCESSORS OR
ASSIGNS ON ANY MATTERS ARISING OUT OF, OR IN ANY WAY CONNECTED WITH,
THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, AND/OR TENANT'S
USE OF, OR OCCUPANCY OF, THE PREMISES. TENANT FURTHER AGREES THAT IT
SHALL NOT INTERPOSE ANY COUNTERCLAIM OR COUNTERCLAIMS IN A SUMMARY
PROCEEDING OR IN ANY ACTION BASED UPON NON-PAYMENT OF RENT REQUIRED BY
TENANT HEREUNDER. THIS WAIVER IS MADE FREELY AND VOLUNTARILY, WITHOUT
DURESS AND ONLY AFTER EACH OF THE PARTIES HERETO HAS HAD THE BENEFIT OF
ADVICE FROM LEGAL COUNSEL ON THIS SUBJECT.
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33. ESTOPPEL CERTIFICATES: Tenant shall, from time to time, upon written
request of Landlord, execute, acknowledge and deliver to Landlord or
its designee a written statement stating: the date this Lease was
executed and the date it expires; the date Tenant entered into
occupancy of the Premises; the amount of minimum monthly rent and the
date to which such rent has been paid; and certifying the following:
that this Lease is In full force and effect and has not been assigned,
modified, supplemented or amended in any way (or specifying the date
and terms of agreement so affecting this Lease); that this Lease
represents the entire agreement between the parties as to this leasing;
that all conditions under this Lease to be performed by the Landlord
have been satisfied, including but without limitation, all co-tenancy
requirements, if any; that all required contributions by landlord to
Tenant on account of Tenant's improvements have been received; that on
this date there are no existing defenses or offsets which the Tenant
has against the enforcement of this Lease by the Landlord; that no Rent
has been paid more than one month in advance; and that no security has
been deposited with Landlord (or, is so, the amount thereof). It is
intended that any such statement delivered pursuant to this paragraph
may be relied upon by a prospective Purchaser of Landlord's interest or
assignee of any mortgage upon Landlord's Interest in the Park. Failure
by Tenant to respond within ten (10) days of receipt by Tenant of a
written request by Landlord as herein provided shall constitute an
event of default of this lease.
34. TRANSFER OF LANDLORD'S INTEREST: In the event of any transfer or
transfers of Landlord's Interest in the Premises or the Park, other
than a transfer for security purposes only, the transferor shall be
automatically relieved of any and all obligations and liabilities on
the part of Landlord accruing from and after the date of such transfer,
and Tenant agrees to attorn to the transferee.
35. RIGHT TO PERFORM: If Tenant shall fail to pay any sum of money, other
than Rent and Additional Rent required to be paid by it hereunder or
shall fail to perform any other act on its part to be performed
hereunder, and such failure shall continue for ten (10) days after
written notice thereof by Landlord, Landlord may, but shall not be
obligated so to do, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment or perform any such other
act on Tenant's part to be made or performed as provided in this Lease.
Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and -remedies in the event of the non-payment
of sums due under this Section as in the case of default by Tenant in
the payment of Rent.
36. SUBSTITUTED PREMISES: In the event Premises rented to Tenant are less
than 7,000 square feet in area, Landlord reserves the right, at its
option and upon giving thirty (30) days written notice in advance to
the Tenant, to transfer and remove the Tenant from Premises to any
other available rooms and offices of substantially equal size and area
and equivalent rental in the Building of which Premises are a part, or
other buildings within the Pa Landlord shall bear the expense of said
removal including, but not limited to, cost of moving, telephone cable
installation, computer cable, and stationery replacement costs, as well
as the expense of any renovations or alterations necessary to make the
new space substantially conform in layout and appointment with the
original Premises. Landlord may exercise the right to so relocate
Tenant under this paragraph at any time including but not limited to,
the period before Tenant takes possession of Premises. If Landlord
moves Tenant to such new space, this Lease and each and all of its
terms, covenants and conditions shall remain in full force and effect
and be deemed applicable to such new space, and such new space shall
thereafter be deemed to be the "Premises". It is agreed that Park shall
mean any of those present buildings known as, or future buildings that
may be built adjacent to and be known as, Roswell Summit Office Park,
Holcomb Bridge Road, Roswell, Georgia.
37. EXCULPATION OF LANDLORD:
Landlord's liability with respect to or arising from or in connection
with this Lease shall be limited solely to Landlord's interest in the
Building. Neither Landlord, any of the partners of Landlord, any
officer, director, principal, trustee, policyholder, shareholder nor
employee of Landlord shall have any personal liability whatsoever with
respect to this Lease.
Landlord shall have absolutely no personal liability with respect to
any provision of this Lease or any obligation or liability arising from
this Lease or in connection with this Lease. Tenant shall look solely
to the equity of the Landlord in the Building for the satisfaction of
any money judgment to Tenant. Such exculpation of liability shall be
absolute and without exception whatsoever.
38. HAZARDOUS WASTE:
Neither Tenant, its successors or assigns, nor any permitted assignee
or sublessee, licensee or other person or entity acting by or through
Tenant, shall (either with or without negligence) cause or permit the
escape, disposal or release of any "Hazardous Substances, or Materials"
(as hereunder defined). Tenant shall not allow the storage or use of
such Hazardous Substances or Materials In any manner not sanctioned by
law and by the highest standards prevailing in the industry for the
storage and use of such Hazardous Substances or Materials, nor allow to
be brought into the Building or the Premises any such Hazardous
Substances or Materials except to use in the ordinary course of
Tenant's business, relative to
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office copiers and then only if such Hazardous Substances or Materials
are not prohibited by (and are only in amounts permitted by) law, after
notice is given to Landlord of the identity of such Hazardous
Substances or Materials. Without limitation, Hazardous Substances or
Materials shall include any biologically or chemically active substance
and any waste, substance or material described in Section 101 (14) of
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended from time to time, 42 U.S.C. Section 9601 et
seq., the Resource Conservation and Recovery Act, as amended from time
to time, 42 U.S.C. Section 6901 et seq., any applicable state or local
laws and the regulations adopted under these acts. If any lender or
governmental agency shall ever require testing to ascertain whether or
not there has been any release of Hazardous Substances or Materials,
then the reasonable costs thereof shall be reimbursed by Tenant to
Landlord upon demand as additional charges if such requirement applies
to the Premises. In addition, Tenant shall execute affidavits,
representations and the like from time to time at Landlord's request
concerning Tenant's best knowledge and belief regarding the presence of
Hazardous Substances or Materials on the Premises. Tenant indemnifies
and covenants and agrees at its sole cost and expense, to protect and
save Landlord harmless against and from any and all damages, losses,
liabilities, obligations, penalties, claims, litigation, demands,
defenses, judgments, suits, proceedings, costs, or expenses of any kind
or of any nature whatsoever (including without limitation, reasonable
attorney's fees and expert's fees) which may at any time be imposed
upon, incurred by or asserted or awarded against Landlord arising from
or out of any Hazardous Substances or Materials on, in, under or
affecting the Premises, the Building or the Property or any part
thereof as a result of any act or omission by Tenant, its successors or
assigns, or any permitted assignee, permitted sublessee or licensee or
other person or entity acting at the direction with the consent of
Tenant. The within covenants shall survive the expiration or earlier
termination of the Lease Term.
39. ADA
Tenant shall be responsible for compliance with Title III of the
American with Disabilities Act of 1990 ("ADA") within the Premises and
Landlord shall be responsible for compliance with Title III of the ADA
relative to the Common Areas within the remainder of the Building.
40. GENERAL:
40.1 Headings: The title to sections of this Lease are not a part of this
Lease and shall have no effect upon the construction or interpretation
of any part hereof. This Lease shall be construed and governed by the
laws of the State of Georgia.
40.2 Heirs and Assigns: All of the covenants, agreements, terms and
conditions contained in this Lease shall inure to and be binding upon
Landlord and Tenant and their respective heirs, executors,
administrators, successors and assigns.
40.3 No Brokers: Tenant represents and warrants to Landlord that it has not
engaged any broker, finder, or other person who would be entitled to
any commission or fees in respect of the negotiation, execution or
delivery of this Lease other than C.B. Commercial Real Estate Group,
Inc. and shall indemnify and hold harmless Landlord against any loss,
cost, liability or expense incurred by Landlord as a result of any
claim asserted by any other broker, finder or other person on the basis
of any arrangements or agreements made or alleged to have been made by
or on behalf of Tenant. The provisions of this Section 40.3 shall not
apply to brokers with whom Landlord has an express written brokerage
agreement.
40.4 Entire Agreement: This Lease contains all covenants and agreements
between Landlord and Tenant relating In any manner to the Rent, use and
occupancy of the Premises and Tenant's use of the Park and other matter
set forth in this Lease. No prior agreements or understanding
pertaining to the same shall be valid or of any force or effect and the
covenants and agreements of this Lease shall not be altered, modified
or added to except in writing signed by Landlord and Tenant.
40.5 Severability: If any clause or provision of this Lease Is or becomes
illegal, invalid, or unenforceable because of present of future laws or
any rule or regulation of any governmental body or entity, effective
during its term, the intention of the Lease shall not be affected
thereby, unless such invalidly is, in the sole 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.
40.6 Late Charges: Tenant hereby acknowledges that late payment to Landlord
of Rent or other sums due hereunder will cause Landlord to incur costs
not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. If any Rent or other sum due from
Tenant is not received by Landlord or Landlord's designated agent
within ten (10) days after its due date, then Tenant shall pay to
Landlord a late charge equal to the maximum amount permitted by law (
and in the absence of any governing law, such overdue amount shall bear
interest at two (2) points over the prevailing Prim ' e Rate as quoted
by The Wall Street Journal percent change as of the first day of the
month in which said Rent becomes past due), plus reasonable attorney's
fees incurred by Landlord by reason of Tenant's
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failure to pay Rent and/or other charge when due hereunder. The parties
hereby agree that such late charges represent a fair and reasonable
estimate of the cost that Landlord will incur by reason of Tenant's
late payment. Landlord's acceptance of such late charges shall not
constitute a waiver of default with respect to such overdue amount or
estop Landlord from exercising any of the other rights and remedies
granted hereunder.
40.7 Force Majeure: Time periods for Landlord's or Tenant's performance
under any provisions of this Lease shall be extended for periods of
time during which the non-performing party's performance is prevented
due to circumstances beyond the party's control, including without
limitation, strikes, embargoes, governmental regulations, acts of God,
war or other strife.
40.8 Homestead and Attorney's Fees: Tenant hereby waives and renounces for
itself any and all homestead or exemption rights which it may have
under or by virtue of the Constitution and Laws of the United States
and the State of Georgia, and any other state as against any debt
Tenant may owe Landlord under this Lease, and Tenant hereby transfers,
conveys and assigns to Landlord all homestead or exemption rights which
may be allowed or set apart to Tenant including such as may be set
apart in bankruptcy proceedings, to pay any debt Tenant may owe
Landlord hereunder.
40.9 No Waiver: No failure or delay of Landlord to exercise any right or
power given it herein or to insist upon strict compliance by Tenant
with any obligation imposed on it herein, and no custom or practice or
either party hereto at variance with any term hereof shall constitute a
waiver or a modification of the terms hereof by Landlord of any right
it has herein to demand strict compliance with the terms hereof by
Tenant. No officer, agent, or employee of Landlord has or shall have
any authority to waive any provisions of this Lease unless such waiver
is expressly made in writing and signed by an authorized officer of
Landlord.
40.10 Time of Essence: Time is of the essence of this Lease.
40.11 No Estate in Land: 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.
40.12 Construction: This Lease shall be construed under the laws of the State
of Georgia.
40.13 No Access to Roof: Tenant shall have no right of access to the roof of
the Premises or the Building and shall not install, repair or replace
any aerial, fan, air-conditioner or other device on the roof of the
Premises of the Building without the prior written consent of Landlord.
Any aerial, fan, air-conditioner or other device installed without such
written consent shall be subject to removal, at Tenant's expense,
without notice, at any time.
40.14 Parking: Tenant shall have the right to occupy on a nonassigned,
nonexclusive basis, and without charge, four (4) parking spaces in the
parking lot adjacent to the Building for each 1,000 square feet of the
Premises. Tenant agrees to abide by such reasonable rules and
regulations for parking use as Landlord may from time to time impose.
40.15 Tenant Improvement Allowance: Landlord shall construct the Premises
from slab floor to finished and installed ceiling grid, using building
standard materials in accordance with construction drawings which shall
be prepared based upon the floor plan set forth in Exhibit A and which
shall be approved by Tenant, whose approval shall not be unreasonably
withheld. No construction of improvements will commence until the final
construction drawings have been approved and initialed by the Tenant.
Once construction of the improvements has commenced, any subsequent
modifications to the construction drawing shall be made at Tenant's
expense.
40.16 Defective Condition. Tenant agrees to use reasonable efforts to report
in writing to Landlord any defective condition in or about the Premises
known to Tenant, and further agrees to attempt to contact Landlord by
telephone immediately in such instance.
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IN WITNESS WHEREOF, the Lease has been executed the day and year first above set
forth.
LANDLORD: THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
By:
-----------------------------------------
Real Estate Vice President
Date:
-----------------------------------------
TENANT: DOWELANCO
By:
-----------------------------------------
Date:
-----------------------------------------
SOCIAL SECURITY and/or FEDERAL I.D. NUMBER
--------------------------------------------------
--------------------------------------------------
Notary Public
JDD1047 State of Indiana:
SS:
County of Marion:
Before me the undersigned, a Notary Public for
Johnson County, State of Indiana, personally
appeared Douglas C. Vawter and acknowledged the
execution of this instrument this ________ day of
________________, 1993.
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EXHIBIT A FLOOR PLAN #1
EXHIBIT A ELECTRICAL PLAN
EXHIBIT A FLOOR PLAN #2
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EXHIBIT "B"
SPECIAL STIPULATIONS
41. RENEWAL OF LEASE:
Provided this Lease is then if full force and effect and Tenant is in
full compliance with the terms and conditions of this Lease, Landlord
hereby grants to Tenant an option to renew this Lease for one period of
five (5) years, at a rental rate equal to the rental rate then being
offered by Landlord to tenants desiring to lease comparable space in
the Building or in other buildings comparable to the Building, with
comparable amenities and services and comparable parking rights and
privileges, and with consideration of a refurbishment allowance of Five
and no/100 Dollars ($5.00) per rentable square foot, as such rate is
established by Landlord in its reasonable judgment. Tenant shall notify
Landlord no more than twelve (12) months and no less than ten (10)
months prior to the end of the Term if Tenant desires to renew this
Lease under the terms of this Paragraph. If Tenant does give such
notice, Landlord shall indicate to Tenant at least nine (9) months
prior to the end of the Term the rental rate which shall be in effect
for the Term as extended, on the basis as above described. Tenant shall
have thirty (30) days from the date Landlord makes such offer to either
accept or reject such offer. If Tenant rejects such offer or fails to
respond within such thirty (30) day period, then this Lease shall
terminate as of the end of the Term as established herein. If Tenant
accepts such offer, then the Term shall be extended by said five (5)
year period, upon the same terms and conditions as contained in this
Lease, and the rent for such period shall be the rent as offered by
Landlord and accepted by Tenant pursuant to the terms and conditions of
this Paragraph.
42. TERMINATION OF LEASE:
Provided this Lease is then in full force and effect and Tenant is in
full compliance with the terms and conditions of this Lease, Landlord
hereby grants to Tenant an option to terminate this Lease at the end of
the thirty-sixth (36th) month of the term. For purposes of this Section
42, the thirty-sixth (36th) month of the term shall be November, 1996.
If Tenant elects to terminate this Lease at the end of the thirty-sixth
(36th) month of the term, Tenant shall provide Landlord with
irrevocable written notice of its Intent to terminate no later than the
end of the thirtieth (30th) month of the term. In consideration of
Landlord permitting an early termination of this Lease, Tenant agrees
to pay Landlord a termination fee (the "Termination Fee") which will be
in an amount equal to the unamortized tenant improvement costs and
brokerage commissions and six (6) months rent (escalated Base Rent and
Additional Rent) which Termination Fee must be delivered simultaneously
with delivery of Tenant's irrevocable written notice of early
termination.
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