|
EXHIBIT 10.2
GALLERIA
ATLANTA
OFFICE LEASE AGREEMENT
AMERICAN SAFETY INSURANCE SERVICES, INC.
TABLE OF CONTENTS
Page
PARAGRAPH 1 TERM AND POSSESSION 1
2 MONTHLY RENTAL 2
3 SECURITY DEPOSIT 6
4 OCCUPANCY AND USE 6
5 COMPLIANCE WITH LAWS 6
6 ALTERATIONS 7
7 REPAIR 7
8 LIENS 8
9 ASSIGNMENT AND SUBLETTING 8
10 INSURANCE AND INDEMNIFICATION 9
11 WAIVER OF SUBROGATION 10
12 SERVICE AND UTILITIES 10
13 ESTOPPEL CERTIFICATE 12
14 HOLDING OVER 12
15 SUBORDINATION 12
16 RE-ENTRY BY LANDLORD 12
17 INSOLVENCY OR BANKRUPTCY 13
18 DEFAULT AND REMEDIES 13
19 DAMAGE BY FIRE 15
20 CONDEMNATION 16
21 placeCitySALE BY LANDLORD 17
22 RIGHT OF LANDLORD TO PERFORM 17
23 SURRENDER OF PREMISES 17
24 WAIVER 17
25 NOTICES 18
26 CERTAIN RIGHTS RESERVED TO LANDLORD 18
27 ABANDONMENT 18
28 SUCCESSORS AND ASSIGNS 18
29 ATTORNEY´S FEES 18
30 CORPORATE AUTHORITY 19
31 MORTGAGE APPROVALS 19
32 MISCELLANEOUS 19
33 LANDLORD´S LIEN 19
34 QUIET ENJOYMENT 20
35 LANDLORD´S LIABILITY 20
36 RIGHT TO RELOCATE 20
37 NO ESTATE 20
38 LEASE EFFECTIVE DATE 20
39 RULES AND REGULATIONS 20
40 SPECIAL STIPULATIONS 21
41 GUARANTY 21
42 CONDITION 21
43 BROKERAGE COMMISSIONS 21
44 EXCULPATION 21
EXHIBIT A RULES AND REGULATIONS
B WORK LETTER AGREEMENT
C ESTOPPEL CERTIFICATE
D FLOOR PLAN OF DEMISED PREMISES
E SPECIAL STIPULATIONS
F GUARANTY
G INSURANCE
GALLERIA
A T L A N T A
OFFICE LEASE AGREEMENT
THIS LEASE is made as of the ______ day of _________, 2006
between OTR, an Ohio general partnership (hereinafter
called "Landlord"), and AMERICAN SAFETY INSURANCE SERVICES,
INC., a Georgia corporation (hereinafter called
"Tenant").
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord those premises (hereinafter called "Premises") shown
on Exhibit "D" attached hereto and made a part thereof, being
located in Atlanta Galleria Office Tower No. 100, a multistory
office
building (the "Building") constructed on a parcel of land (the
"Property") bounded by I-285 on the North, I-75 on the East, U.S.
41
on the West and Akers Mill Road on the South. Tenant´s
Federal Tax Identification Number is _________________.
Premises: Atlanta Galleria-Office Tower No. 100,
Street100 Galleria Parkway
Atlanta, Cobb County,Georgia
Square Feet: 46,978 Suite Number: 700 and 800
Floor(s): 7th and 8th
1. Term and 1. (a) The term of the Lease shall be for eighty-six
(86) months (or until
Possession. sooner terminated as herein provided) (the "Lease
Term"), beginning on (i) February 1, 2007 or (ii) the
"Commencement Date" (as hereinafter defined), whichever shall
last occur, except that if the Commencement Date is
other than the first day of a calendar month, the term hereof
shall be extended for the remainder of that
calendar month.
(b) The Commencement Date shall be the earlier of (i) the date
upon which the Premises have been
substantially completed in accordance with the plans and
specifications of Landlord (other than any work which
cannot be completed on such date provided such incompletion will
not substantially interfere with Tenant's use
of the Premises) but which shall not be deemed to have occurred
earlier than February 1, 2007 regardless of the
status of completion, or (ii) the date on which Tenant takes
possession of a portion of or all of the Premises;
provided, however, that if Landlord shall be delayed in such
substantial completion as a result of any of the
foregoing (each, a "Tenant Delay"): (1) Tenant's failure to
agree to plans, specifications, or cost estimates
before the date referred to in the Work Letter Agreement
attached hereto as Exhibit "B" and made a part hereof;
(2) Tenant's request for materials, finishes or installations
other than Landlord's standard; (3)Tenant's
changes in plans; or (4) the performance or completion by a
party employed by Tenant, the Commencement Date and
the payment of rent hereunder shall be accelerated by the number
of days of such delay.
(c) Landlord agrees to perform the "Building Standard Work" or
"Building Nonstandard Work" in the
Premises as provided in the Work Letter Agreement with
diligence, subject to events and delays due to causes
beyond its reasonable control. The Premises shall be deemed
substantially completed and possession delivered
when Landlord has substantially completed the work to be
constructed or installed pursuant to the provisions of
the Work Letter Agreement, subject only to the completion of
items on Landlord's punch list (and exclusive of
the installation of all telephone and other communications
facilities and equipment and other finish work to be
performed by or for Tenant) and a temporary or permanent
certificate of occupancy has been issued allowing
Tenant to take possession of the entire Premises.
(d) The taking of possession by Tenant shall be deemed
conclusively to establish that the Building, other
improvements, and the Premises have been completed in accordance
with the plans and specifications and are in
good and satisfactory condition as of when possession was so
taken, subject to latent defects as to which Tenant
notifies Landlord within six (6) months after the Commencement
Date and to punch list items.
(e) Landlord shall use commercially reasonable efforts to
substantially complete the Premises so that
Tenant may occupy the Premises on or before February 1,
2007.
(f) Notwithstanding the foregoing provisions to the contrary, if
the Commencement Date does not occur
prior to June 1, 2007 as a result of any Landlord Delay (as
hereinafter defined), then the Lease Term and
Tenant´s obligation to pay rent hereunder shall not occur
until the occurrence of the Commencement Date. For
purposes of this Lease, "Landlord Delay" shall mean any of the
following: (i) Landlord´s failure to perform
its obligations under Paragraph 1 of this Lease, the Work Letter
Agreement, or any other provisions hereof
relating to Landlord´s duty to construct the initial
improvements to the Premises; or (ii) Landlord´s failure
to take any other action required to be taken by Landlord under
any other provision of this Lease or the Work
Letter Agreement within the period specified therefor; provided,
however, that any such failure is not a result
of Tenant Delay or an event of default by Tenant under this
Lease.
2. Monthly 2. (a) Beginning five (5) months following the
Commencement
Rental. Date (the "Rental Start Date"), Tenant shall pay to
Landlord throughout the term of this Lease rental as set
forth below, payable in equal monthly rental installments and
payable in advance on the first day of each month
during every year of the term hereby demised in lawful money of
the United States, without deduction or offset
whatsoever, to Landlord or to such other firm as Landlord may
from time to time designate in writing. Until
notified otherwise, Tenant shall submit all payments using one
of the following methods:
Preferred Method
Automated Clearing House (ACH)
Account # 71908884
Bank Name: Fifth Third Bank
Routing & Transit: 042 000 314
Account: OTR Nominee of State Teachers Retirement System of
Ohio
Reference: _______________________
Tenant must notify Landlord of ACH wire using one of the
following methods:
Fax: Childress Klein Properties, Attn: Vicki Smith, (770)
859-1299 or
E-mail: Vicki.Smith@childressklein.com
ACH Wiring instructions are subject to change upon notification
from Landlord.
Alternate Method
Issue a check
OTR Nominee of State Teachers Retirement System of
placeStateOhio
P.O. Box 633212
Cincinnati, StateOH PostalCode45263-3212
Please note Wire Transfers are not an approved form of payment.
Said rental is subject to adjustments as
provided hereinbelow. If this Lease commences on a day other
than the first day of a calendar month, the
monthly rental for the fractional month shall be appropriately
prorated.
Landlord shall have no obligation to provide invoices to Tenant
for the monthly rental payments due under this
Lease, and each such monthly rental payment shall be paid by
Tenant when due as set forth herein whether or not
Tenant receives an invoice for such payment.
The rental due and payable under this Paragraph 2(a) shall be as
follows:
Annual Rent Annual Monthly
Period Per RSF Rent Rent
Rental Start Date - $19.25 $904,326.50 $75,360.54
03/31/08
04/01/08 ¬ 03/31/09 $19.88 $933,922.64 $77,826.89
04/01/09 ¬ 03/31/10 $20.53 $964,458.34 $80,371.53
04/01/10 ¬ 03/31/11 $21.20 $995,933.60 $82,994.47
04/01/11 ¬ 03/31/12 $21.89 $1,028,348.42 $85,695.70
04/01/12 ¬ 03/31/13 $22.60 $1,061,202.80 $88,475.23
04/01/13 ¬ Last Day of $23.33 $1,095,996.74 $91,333.06
Lease Term
(b) Tenant recognizes that late payment of any rent or other sum
due hereunder from Tenant to Landlord
will result in administrative expense to Landlord, the extent of
which additional expense is extremely
difficult and economically impractical to ascertain. Tenant
therefore agrees that if rent or any other payment
due hereunder from Tenant to Landlord remains unpaid five (5)
days after said amount is due, the amount of such
unpaid rent or other payment shall be increased by a late charge
to be paid to Landlord by Tenant in an amount
equal to five percent (5%) of the amount of the delinquent rent
or other payment. The amount of the late
charge to be paid to Landlord by Tenant for any month shall be
computed on the aggregate amount of delinquent
rents and other payments, including all accrued late charges
then outstanding, and shall be deemed to be rental
for all purposes hereunder. Tenant agrees that such amount is a
reasonable estimate of the loss and expense to
be suffered by Landlord as a result of such late payment by
Tenant and may be charged by Landlord to defray
such loss and expense. The provisions of this paragraph in no
way relieve Tenant of the obligation to pay rent
or other payments on or before the date on which they are due,
nor do the terms of this paragraph in any way
affect Landlord's remedies pursuant to Paragraph 18 of this
Lease in the event said rent or other payment is
unpaid after the date due.
(c) The monthly rental payable hereunder shall be subject to
adjustment each calendar year during the
term of this Lease, commencing January 1, 2008, in the following
manner:
(i) Tenant shall pay to Landlord as additional rent Tenant's
proportionate share of the amount
by which the Direct Operating Expenses (as hereinafter defined)
incurred by Landlord in the operation of the
Building during each calendar year of the Lease Term exceeds the
Direct Operating Expenses for the base year
2007 (hereinafter called the "Base Year"). Tenant's
Proportionate Share of Direct Operating Expenses (as
hereinafter defined) shall be prorated on a daily basis using a
365-day calendar year, as necessary for any
year during which this Lease is in effect for less than the full
twelve month calendar year. Direct
Operating Expenses shall be calculated on an accrual basis. For
the purpose of estimating the Direct
Operating Expenses during each subsequent year after the Base
Year, Landlord shall reasonably estimate such
expenses (assuming ninety-five percent (95%) occupancy of the
Building if the actual occupancy is less than
ninety-five percent) based on the actual Direct Operating
Expenses for the preceding year, any then-known
cost changes or additional expenses which can be reasonably
anticipated to occur within the year for which
such expenses are estimated, Landlord's experience with similar
office buildings, the costs of contracts
already entered, quotes obtained, representations of providers
of the services and equipment, consultation
with specialists such as insurers, and other factors a prudent
landlord would use to make a fair and
accurate estimate of operating costs. Notwithstanding anything
contained in this Lease to the contrary, for
purposes of determining Direct Operating Expenses for the Base
Year and each calendar year subsequent to the
Base Year, in the event actual occupancy of the Building is less
than ninety-five percent (95%) during any
calendar year, the actual Direct Operating Expenses for such
calendar year shall be increased to the amount
which Landlord reasonably estimates would have been incurred for
such calendar year had the occupancy of the
Building been ninety-five percent (95%) throughout such year,
and the amount so estimated shall be deemed to
be the Direct Operating Expenses for such calendar year.
(ii) "Tenant's Proportionate Share of Direct Operating Expenses"
shall mean, for each calendar
year (or portion thereof), the product of (i) the Operating
Expense Amount (defined below) multiplied by
(ii) a fraction, the numerator of which is the number of square
feet contained in the Premises (46,978) and
the denominator of which is the number of rentable square feet
contained in the Building (410,571). As
used herein, the "Operating Expense Amount" shall mean, for each
calendar year (or portion thereof), the
amount by which the Direct Operating Expenses (defined below)
exceeds the Base Year's Direct Operating
Expenses.
(iii) For purposes of this Lease, the term "Direct Operating
Expenses" shall consist of all
"operating costs" (as hereinafter defined) for the Building, and
the Building’s share of all operating
costs for any parking area and common area serving the Building,
and the Property (the Building, such
parking area, common area and the Property being hereinafter
referred to collectively as the "Project").
For purposes of this Lease, the term "operating costs" shall
mean all reasonable expenses, costs and
disbursements computed on the accrual basis, relating to or
incurred or paid in connection with the
operation, maintenance and repair of the Project, including, but
not limited to the following:
a. Building personnel costs, including, but not limited to,
salaries, wages, fringe
benefits, social security taxes and other direct and indirect
costs of Senior Property Manager,
Engineering Manager, Building Managers, Accounting Manager,
Construction Manager, Promotions
Manager, Security Manager, and each department’s
supporting personnel and administrative
assistants, engineers, construction department, superintendents,
watchmen, porters and any other
personnel engaged in the operation and maintenance of the
Project and associated overhead.
b. The cost of all supplies, tools, equipment and materials used
in the operation and
maintenance of the Project.
c. The cost of water, sewer, gas, heating, lighting,
ventilation, electricity, air
conditioning, and any other utilities supplied or paid for by
Landlord for the Project and the
costs of maintaining the systems supplying the same, including,
but not limited to, any utility
and service costs incurred by Landlord.
d. The cost of all agreements for maintenance and service of the
Project and the equipment
therein, including, but not limited to, agreements relating to
security service, window cleaning,
elevator maintenance, chiller maintenance, Building management,
janitorial service, pest control
and landscaping maintenance.
e. The cost of maintaining sprinkler systems, fire extinguishers
and fire hoses, emergency
systems and equipment that may be now or hereafter required by
the Americans With Disabilities Act,
and the cost of all security services and protective services or
devices rendered to or in
connection with the Project or any part thereof; any costs
incurred in order to comply with any law,
statute, ordinance, or governmental rule, regulation or
requirement now in force or which may
hereafter be enacted or promulgated; and the costs incurred in
order to comply with requirements of
any insurer or mortgagee, where such requirements concern safety
or structural features of the
Building and are commercially reasonable in light of
requirements generally imposed in the insurance
or real estate lending industries with respect to similar
buildings.
f. Insurance premiums for insurance for the Project required to
be maintained by Landlord
hereunder or which a prudent owner would carry, including, but
not limited to, premiums for
insurance maintained by Landlord, business interruption or
rental abatement insurance, garage
keeper´s insurance, and liability insurance.
g. The cost of repairs and general maintenance of the Project
(excluding repairs,
alterations and general maintenance paid by proceeds of
insurance or attributable solely to
tenants of the Project other than Tenant, but including
deductibles paid by Landlord), including,
but not limited to: any management fees charged by Landlord;
promotional or seasonal expenses;
maintenance and cleaning of common areas and facilities; lawn
mowing, gardening, landscaping, and
irrigation of landscaped areas; line painting, pavement repair
and maintenance, sweeping, and
sanitary control; removal of snow, trash, rubbish, garbage, and
other refuse; the cost of
personnel to implement such services, to direct parking, and to
patrol the common areas; the cost
of exterior and interior painting of common areas; all
maintenance and repair costs; and the cost
of maintenance of sewers and utility lines.
h. The amortization amount (including interest at a market rate)
necessary to amortize the
cost of capitalized alterations or improvements, including, but
not limited to, the replacement of
existing furniture, fixtures, equipment or systems that have
become obsolete or do not function
efficiently and effectively or as they were originally intended
for a first class office building.
The amortization period selected by the Landlord shall reflect
the useful life of the alteration or
improvement.
i. All taxes, assessments, and governmental or other charges,
general or special, ordinary
or extraordinary, foreseen or unforeseen (including, but not
limited to, Community Improvement
District assessments), which are levied, assessed, or otherwise
imposed against the Project,
street lights, personal property or rents, or on the right or
privilege of leasing the Project,
collecting rents therefrom or parking vehicles thereon, by any
federal, state, county, or
municipal government or by any special sanitation district or by
any other governmental or
quasi-governmental entity that has taxing or assessment
authority, and any other taxes and
assessments, excluding any interest and penalties thereon
resulting from Landlord’s failure to
timely pay such amounts, attributable to the Project or its
operation (herein collectively called
the "Impositions"), but exclusive of federal, state and local
income taxes of Landlord,
inheritance taxes, estate taxes, gift taxes, transfer taxes,
excess profit taxes and any taxes
imposed in lieu of such taxes. If at any time during the Lease
Term, the present method of
taxation or assessment shall be so changed that the whole or any
part of the Impositions now
levied, assessed or imposed on real estate and the improvements
thereon shall be discontinued and
as a substitute therefor, or in lieu of and in addition thereof,
taxes, assessments, levies,
impositions or charges shall be levied, assessed and/or imposed
wholly or partially as a capital
levy or otherwise on the rents received from the Project or the
rents reserved herein or any part
thereof, then such substitute or additional taxes, assessments,
levies, impositions or charges, to
the extent so levied, assessed or imposed, shall be deemed to be
included within the Impositions
and the operating costs. Tenant will be responsible for ad
valorem taxes on its personal property
and on the value of the leasehold improvements in the Premises
to the extent the same exceed
building standard allowances (and if the taxing authorities do
not separately assess Tenant's
leasehold improvements, Landlord may make a reasonable
allocation of the ad valorem taxes
allocated to the Project to give effect to this sentence).
j. All assessments (if any) assessed against the Project during
the Lease Term pursuant to
any protective covenants, easement agreements or common area
maintenance agreements now or
hereafter of record against the Project including, but not
limited to, any common area maintenance
charges assessed pursuant to that certain Common Area
Maintenance Agreement dated July 2, 1985, as
said Agreement has been and may be amended from time to
time.
k. Fees of accountants, attorneys and other consultants,
professionals or advisors incurred
by Landlord with respect to operational issues at the
Project.
l. Any other costs or expenses incurred by Landlord in the
operation of the Project that would
be considered an expense of maintaining, operating or repairing
the Project, all such costs and
expenses being recorded on an accrual basis in accordance with
accepted principles of sound
management and accounting practices applicable to first class
office building complexes and
consistently applied.
Direct Operating Expenses shall not include the following
items:
Leasing commissions, finders’ fees, brokerage fees, and
costs incurred with the negotiation of
leases (but not management fees); Rent under any ground leases;
Costs of furnishing services to
other tenants or occupants to the extent that such services are
materially and substantially in
excess of services Landlord offers to all tenants at
Landlord’s expense; Lease takeover costs
incurred by Landlord in connection with new leases at the
Property; Costs and expenses of the sale
of all or any portion of the Property; Costs incurred by
Landlord with respect to repairs, goods and
services (including utilities sold and supplied to tenants and
occupants of the Property) to the
extent that Landlord is entitled to reimbursement for such costs
from the tenants; Costs incurred by
Landlord due to the violation by Landlord of the terms and
conditions of any lease of space in the
Property; Costs incurred by Landlord with respect to disputes
with tenants under the Leases
including, without limitation, dispossessory proceedings;
Capital Costs other than as provided for
in paragraph 2(c)(iii)h hereof; Capital Costs of correcting any
non-compliance of the Building,
existing as of the date of this Lease, with the Americans With
Disabilities Act as currently
existing and as currently interpreted; Costs in excess of
customary maintenance costs incurred to
encapsulate, remove or otherwise handle any Hazardous Materials
found in the Building or the
Property; Interest, points and fees on debt or amortization or
for any mortgage or mortgages
encumbering the Property, or any part thereof, and all
principal, escrow deposits and other sums
paid on or in respect to any indebtedness (whether or not
secured by a mortgage lien) and on any
equity participations of any lender or lessor, and all costs
incurred in connection with any
financing, refinancing or syndication of the Property, or any
part thereof; Costs of the original
construction of the Property; Income, franchise, transfer,
inheritance, capital stock, estate,
profit, gift, gross receipts or succession taxes; Costs of
repairs or replacements incurred by
reason of fire or other casualty or condemnation in excess of
the insurance deductible; Costs for
performing tenant installations for any individual tenant or for
performing work or furnishing
services to or for individual tenant at such tenant’s
expense and any other contribution by Landlord
to the cost of tenant improvements.
(iv) Nothing contained in this Section shall imply any duty on
the part of Landlord to pay any
expense or provide any service not otherwise imposed by the
express terms of this Lease.
(v) On or about December 31 of each calendar year during the
Lease Term, Landlord shall
estimate the amount of Direct Operating Expenses and Tenant's
Proportionate Share of Direct Operating
Expenses for the ensuing calendar year or (if applicable)
fractional part thereof and notify Tenant in
writing of such estimate. Such estimate shall be made by
Landlord in the exercise of its discretion, and
shall not be subject to dispute by Tenant. The amount of
additional rent specified in such notification
shall be paid by Tenant to Landlord in equal monthly
installments in advance on the first day of each month
of such ensuing calendar year, at the same time and in the same
manner as base rent.
(vi) Within One Hundred Eighty (180) days after December 31 of
any calendar year during the
Lease Term for which additional rent is due under this Section,
Landlord shall advise Tenant in writing, of
the amount of actual Direct Operating Expenses for such calendar
year. If the Direct Operating Expenses for
such calendar year prove to be greater than the amount
previously estimated, Landlord shall invoice Tenant
for the deficiency as soon as practicable after the amount of
underpayment has been determined, and Tenant
shall pay such deficiency to Landlord within thirty (30) days
following its receipt of such invoice. If,
however, Direct Operating Expenses for such calendar year are
lower than the amount previously estimated,
Tenant shall receive a credit (or in the event the term of this
Lease has then expired, Tenant shall receive
a cash refund) toward the next ensuing monthly payment or
payments of the estimated amount of Tenant's
Proportionate Share of Direct Operating Expenses in the amount
of such overpayment until depleted, but in no
event shall Tenant's Proportionate Share of Direct Operating
Expenses be deemed to be less than zero.
3. Security 3. Tenant hereby deposits with Landlord on the date
hereof the sum of Seventy
Deposit. Seven Thousand Eight Hundred Twenty Six and 89/100
Dollars ($77,826.89), which sum shall be held by Landlord,
without obligation for interest, as security for the full,
timely and faithful performance of Tenant's covenants
and obligations under this Lease. It is understood and agreed
that such deposit is not an advance rental
deposit or prepayment of the last month’s rent due
hereunder, and is not a measure of Landlord's damages in case
of Tenant's default. Upon the occurrence of any default or event
of default by Tenant which is not cured within
any applicable notice and/or cure period, Landlord may, from
time to time, without prejudice to any other remedy
provided herein or provided by law, use such funds to the extent
necessary to make good any arrears of rent or
other payments due Landlord hereunder, and any other damage,
injury, expense or liability caused by any event of
Tenant's default; and Tenant shall pay to Landlord on demand the
amount so applied in order to restore the
security deposit to its original amount. Although the security
deposit shall be deemed the property of
Landlord, any remaining balance of such deposit shall be
returned by Landlord to Tenant or Tenant's last
permitted assignee at such time after termination of this Lease
when Landlord shall have determined that all
Tenant's obligations under this Lease have been fulfilled.
Landlord shall not be required to keep any security
deposit separate from its general funds. Upon the occurrence of
any events of default or default as described
in this Lease which is not cured within any applicable notice
and/or cure period, said security deposit shall
become due and payable to Landlord. Subject to the other terms
and conditions contained in this Lease, if the
Building is conveyed by Landlord, said deposit may be turned
over to Landlord's grantee, and if so, Tenant
hereby releases Landlord from any and all liability with respect
to said deposit and its application or return.
Notwithstanding the foregoing, Landlord and Tenant acknowledge
and agree that the foregoing security deposit, if
not previously applied to Tenant’s obligations under this
Lease in accordance with this Paragraph 3, shall be
applied to rent due under this Lease for the month of April,
2008.
4. Occupancy 4. (a) Tenant shall use and occupy the Premises for
general office purposes
and Use. and for no other use or purpose without the prior
written consent of Landlord.
(b) Tenant shall not do or permit anything to be done in or
about the Premises which will in any way
obstruct or interfere with the rights of other tenants or
occupants of the Building or injure or annoy them,
nor use or allow the Premises to be used for any improper,
immoral, unlawful, or objectionable purposes or for
any business, use or purpose deemed to be disreputable or
inconsistent with the operation of a first class
office building, nor shall Tenant cause or maintain or permit
any nuisance in, on, or about the Premises.
Tenant shall not commit or suffer the commission of any waste
in, on, or about the Premises.
5. Compliance 5. (a) Tenant shall not use the Premises or permit
anything to be done in or about
with Laws. the Premises which will in any way conflict with any
law, statute, ordinance, or governmental rule, regulation or
requirement now in force or which may hereafter be enacted or
promulgated. Tenant shall not do or permit
anything to be done on or about the Premises or bring or keep
anything therein which will in any way increase the
rate of any insurance upon the Building in which the Premises
are situated or any of its contents or cause a
cancellation of said insurance or otherwise affect said
insurance in any manner, and Tenant shall at its sole
cost and expense promptly comply with all laws, statutes,
ordinances, and governmental rules, regulations, or
requirements now in force or which may hereafter be in force and
with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted
relating to or affecting the condition, use, or
occupancy of the Premises. Notwithstanding anything contained in
this paragraph to the contrary, Tenant shall
not be responsible for ensuring that the common areas of the
Building comply with applicable laws.
(b) Tenant shall not use, handle, store, deal in, discharge, or
fabricate any Hazardous Materials (as
herein defined) on or about the Premises (except for typical
office supplies maintained in compliance with all
applicable laws and ordinances). Tenant shall indemnify Landlord
(and anybody claiming by, through, or under
Landlord) from and against any and all claims, damages, losses,
costs, and expenses (including reasonable
attorneys´ fees and court costs) incurred by Landlord or
anybody claiming by, through, or under Landlord as a
result of the existence of any Hazardous Materials on or about
the Premises or any environmental problems
relating to the Premises which are caused by or related to the
delivery, deposit or creation of Hazardous
Materials on or about the Premises during the term of this
Lease. As used herein, "Hazardous Materials" means
any petroleum or chemical liquids or solids, liquid or gaseous
products, contaminants, oils, radioactive
materials, asbestos, PCB's, urea-formaldehyde, or any toxic or
hazardous waste or hazardous substances, as those
terms are used in (A) the Resources Conservation Recovery Act,
as amended by the Hazardous and Solid Waste
Amendments of 1984, 42 U.S.C. § 6901 et seq.; (B) the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. § 9601
et seq.; (C) the Clean Water Act, 33 U.S.C. § 1251 et seq.;
(D) the Toxic Substances and Control Act, 15 U.S.C.
§ 2601 et seq.; (E) the Clean Air Act, 42 U.S.C. §
7401 et seq.; (F) any and all applicable environmental laws
and regulations of the State of Georgia; and (G) any and all
other applicable federal, state or local law or
regulation governing hazardous substances or workplace health or
safety, as such laws may be amended from time
to time.
6. Alterations. 6. Tenant shall not make or suffer to be made
any alterations, additions, or improvements in, on, or to the
Premises or any part thereof without the prior written consent
of Landlord, and no such alterations, additions
or improvements shall be made without the supervision of
Landlord´s designated agent or representative;
provided, however, that Landlord’s consent shall not be
required for any alterations or additions that satisfy
the following criteria ("Cosmetic Alterations"): (1) are of a
cosmetic nature such as painting, wallpapering,
hanging pictures or installing carpeting; (2) are not visible
from the exterior of the Premises or the Building;
(3)do not affect any structural components of, or mechanical,
electrical or other building systems in, the
Premises or the Building; and (4) do not require work to be
performed inside the demising walls of the
Premises. However, even though consent is not required for
Cosmetic Alterations, the performance of Cosmetic
Alterations shall be subject to all other applicable provisions
of this Paragraph 6, and Tenant shall give
Landlord written notice of any proposed Cosmetic Alterations at
least ten (10) days prior to commencement of
such Cosmetic Alterations. In the event Landlord consents to the
making of any such alterations, additions, or
improvements by Tenant, the same shall be made by Tenant, at
Tenant's sole cost and expense, in accordance with
all applicable laws, ordinances, and regulations and all
requirements of Landlord's and Tenant's insurance
policies. All work shall be performed in accordance with plans
and specifications approved by Landlord, and
each contractor and subcontractor must first be approved in
writing by Landlord, or, at Landlord's option, the
alteration, addition or improvement shall be made by Landlord
for Tenant's account, and Tenant shall reimburse
Landlord for the cost thereof upon demand. If, but only if,
Tenant requests that Landlord provide assistance,
management or oversight for any alterations, additions or
improvements to the Premises by Tenant, then (except
with respect to the construction of the initial tenant
improvements pursuant to the Work Letter Agreement)
Landlord shall have the right to charge a fee for any and all
construction supervision provided by Landlord´s
designated agents or representatives in connection with such
alterations, additions, or improvements to the
Premises by Tenant. Such fee, at Landlord´s option, shall
be either a fixed fee or a fee calculated on an
hourly basis, considering the time expended by Landlord´s
agents or representatives in supervising Tenant´s
construction.
7. Repair. 7. By taking possession of the Premises, Tenant
accepts the Premises as being in the condition in which
Landlord
is obligated to deliver them and otherwise in good order,
condition and repair. Tenant shall, at all times
during the term hereof at Tenant's sole cost and expense, keep
the Premises and every part thereof in good order,
condition and repair, excepting ordinary wear and tear, damage
thereto by fire, acts of terrorism, earthquake,
act of God or the elements. Tenant shall upon the expiration or
sooner termination of the term hereof, unless
Landlord demands otherwise as in Paragraph 23 hereof provided,
surrender to Landlord the Premises and all
repairs, changes, alterations, additions and improvements
thereto in the same condition as when received, or when
first installed, ordinary wear and tear, damage by fire,
earthquake, act of God, or the elements excepted. It is
hereby understood and agreed that Landlord has no obligation to
alter, remodel, improve, repair, decorate, or
paint the Premises or any part thereof except as specified in
the Work Letter Agreement, and that no
representations respecting the condition of the Premises or the
Building have been made by Landlord to Tenant,
except as specifically herein set forth.
8. Liens. 8. Tenant shall keep the Premises free from any liens
arising out of any work performed, material furnished,
or obligations incurred by Tenant. In the event that Tenant
shall not, within twenty (20) days following the
recordation of any such lien, cause the same to be released of
record by payment or posting of a proper bond,
Landlord shall have, in addition to all other remedies provided
herein and by law, the right, but not the
obligation, to cause the same to be released by such means as it
shall deem proper, including payment of the
claim giving rise to such lien. All such sums paid by Landlord
and all expenses incurred by it in connection
therewith shall be considered additional rent and shall be
payable to Landlord by Tenant on demand and with
interest at the rate of four percentage points higher than the
prime commercial lending rate from time to time
of SunTrust Bank in Atlanta, Georgia, provided, however, that if
such rate exceeds the maximum rate permitted
by law, the maximum lawful rate shall apply; the interest rate
so determined is hereinafter called the "Agreed
Interest Rate". Landlord shall have the right at all times to
post and keep posted on the Premises any notices
permitted or required by law, or which Landlord shall deem
proper, for the protection of Landlord, the
Premises, the Building, and any other party having an interest
therein, from mechanics' and materialmen's
liens, and Tenant shall give to Landlord at least five (5)
business days prior notice of commencement of any
construction on the Premises.
9. Assignment 9. (a) Tenant shall not sell, assign, encumber or
otherwise transfer by operation
and Subletting. of law or otherwise this Lease or any interest
herein, sublet the Premises or any portion thereof, or suffer
any
other person to occupy or use the Premises or any portion
thereof, without the prior written consent of Landlord
as provided herein, which consent shall not be unreasonably
withheld, conditioned or delayed, nor shall Tenant
permit any lien to be placed on the Tenant's interest by
operation of law. Tenant shall, by written notice,
advise Landlord of its desire from and after a stated date
(which shall not be less than thirty (30) days nor
more than ninety (90) days after the date of Tenant's notice) to
sublet the Premises or any portion thereof for
any part of the term hereof; and supply Landlord with such
information, financial statements, verifications and
related materials as Landlord may request or desire to evaluate
the written request to sublet; and in such event
Landlord shall have the right, to be exercised by giving written
notice to Tenant within ten (10) days after
receipt of Tenant's notice and all said information, financial
statements, verifications and related materials
requested by Landlord, to terminate this Lease as to the portion
of the Premises described in Tenant's notice
and such notice shall, if given, terminate this Lease with
respect to the portion of the Premises therein
described as of the date stated in Tenant's notice. Said 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 rent, as
defined and reserved hereinabove and as adjusted pursuant to
Paragraph 19(c), 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
unreasonably withhold or grant its consent to
Tenant's subletting the Premises specified in said notice.
Tenant shall, at Tenant's own cost and expense,
discharge in full any outstanding commission obligation on the
part of Landlord with respect to this Lease, and
any commissions which may be due and owing as a result of any
proposed assignment or subletting, whether or not
the Lease is terminated pursuant hereto and rented by Landlord
to the proposed subtenant or any other tenant.
Tenant agrees to pay to Landlord, promptly after request
therefor, (i) the amount of all attorneys´ fees and
expenses incurred by Landlord in connection with any assignment
or subletting issues or review of documentation
relating thereto, and (ii) $500.00 as an administrative fee for
Landlord´s time and effort in connection with
any assignment or subletting issues.
(b) Any subletting or assignment 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 assignee or subtenant 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 or
assignment and an agreement of said compliance
by each sublessee or assignee. Notwithstanding any provision to
the contrary contained herein, any subletting
or assignment by Tenant hereunder shall result in all rights of
first refusal, rights of first offer, rights to
expand, and renewal options granted herein being forfeited by
Tenant and its assignee or subtenant. Tenant
expressly acknowledges that Landlord intends for all of such
rights to be personal and exclusive to Tenant, and
that such rights are not subject to transfer to any other
party.
(c) Landlord's consent to any sale, assignment, encumbrance,
subletting, occupation, lien or other
transfer shall not release Tenant from any of Tenant's
obligations hereunder or be deemed to be a consent to any
subsequent occurrence. Any sale, assignment, encumbrance,
subletting, occupation, lien or other transfer of this
Lease which does not comply with the provisions of this
Paragraph 9 shall be void.
(d) For purposes of this Section, an assignment of stock or
other direct or indirect ownership interest in
Tenant which constitutes a controlling interest in Tenant shall
be deemed an assignment within the meaning of and
be governed by this Section; provided, however, that this
provision shall not apply to the transfer of publicly
traded stock of Tenant, if any.
(e) Notwithstanding any provision contained herein, Tenant
agrees that it shall not sell, assign,
encumber or otherwise transfer by operation of law or otherwise
this Lease or any interest herein, or sublet
the Premises or any portion thereof, to any tenant who currently
leases space in the Building.
(f) If this Lease is assigned, or if the Premises or any part
thereof are sublet or occupied by anyone
other than Tenant during the Lease Term (with or without
Landlord´s consent), Landlord shall be entitled to
fifty percent (50%) of all rents, fees and other considerations
paid by such subtenant, assignee or occupant
with respect to the Premises, including, but not limited to, all
amounts paid in excess of the rental specified
in this Lease.
(g) Notwithstanding the foregoing provisions of this Paragraph
9, such consent of Landlord shall not be
necessary or required in connection with any assignment or
subletting to any firm, person, corporation,
partnership or other entity (an"Affiliate"), now or hereafter
directly or indirectly in control of, controlled
by or under common control with Tenant, or indirectly in control
of, controlled by or under common control with
Tenant, or which or with which Tenant shall merge or consolidate
(collectively, an "Affiliate Transfer"),
provided that Tenant shall remain liable for performance of its
obligations hereunder and, if Tenant shall not
survive any such Affiliate Transfer as a separate, on-going
business entity, the then creditworthiness of any
successor to Tenant is at least substantially equal to the then
creditworthiness of Tenant, as determined in
Landlord´s reasonable judgment. Tenant shall provide to
Landlord at least ten (10) business days prior written
notice of any proposed Affiliate Transfer, including information
regarding the creditworthiness of the proposed
transferee.
10. Insurance and 10. (a) Landlord shall not be liable to Tenant
and Tenant hereby waives all
Indemnification. claims against Landlord for any injury or
damages to any person or property in or about the Premises by or
from
any cause whatsoever, without limiting the generality of the
foregoing, whether caused by water leakage of any
character from the roof, walls, basement, or other portion of
the Premises or the Building, or caused by gas,
fire, or explosion of the Building or the complex of which it is
a part or any part thereof, except to the extent
arising from the gross negligence or willful misconduct of
Landlord.
(b) Tenant shall hold Landlord harmless from and defend and
indemnify Landlord against any and all
claims or liability for any injury or damage to any person or
property whatsoever: (i) occurring in, on or
about the Premises or any part thereof, (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 or damage
shall be caused in part or in whole by the act,
neglect, fault of, or omission of any duty with respect to the
same by Tenant, its agents, servants, employees,
or invitees. Tenant further agrees to indemnify, defend and save
harmless Landlord against and from any and
all claims in any manner relating to any work or thing
whatsoever done by Tenant in or about, or any
transactions of Tenant concerning, the Premises, and will
further indemnify, defend and save Landlord harmless
against and from any and all claims arising from any breach or
default on the part of Tenant in the performance
of any covenant or agreement on the part of Tenant to be
performed pursuant to the terms of this Lease, or
arising from any act or negligence of Tenant, or any of its
agents, contractors, servants, employees and
licensees, and from and against all costs, counsel fees,
expenses and liabilities incurred in connection with
any such claim or action or proceeding brought thereon.
Furthermore, in case any action or proceeding be
brought against Landlord by reason of any claims or liability,
Tenant agrees to defend such action or
proceeding at Tenant's sole expense by counsel reasonably
satisfactory to Landlord. The provisions of this
Lease with respect to any claims or liability occurring prior to
the termination or expiration of this Lease
shall expressly survive such termination or expiration of this
Lease.
(c) Tenant agrees to purchase at its own expense and to keep in
force during the term of this Lease all
insurance coverages reasonably required by Landlord to be
maintained by tenants in the Building generally,
including, but not limited to, the policies of insurance
specified on Exhibit "G" attached to this Lease.
Tenant´s insurance must be in force upon Tenant taking
possession of the Premises, or upon the Commencement
Date, whichever is earlier, and shall continue throughout the
Lease Term.
(d) Landlord shall hold Tenant harmless from and defend and
indemnify Tenant against any and all claims or
liabilities for any injury or damage to any person or property
whatsoever occurring in, on or about the Building
or the Property, to the extent such injury or damage shall be
caused by the grossly negligent acts or omissions
of Landlord or Landlord´s agents, employees or
contractors. Landlord further agrees to indemnify, defend and
save Tenant harmless against any and all claims arising from any
breach or default on the part of Landlord in the
performance of any covenant or agreement on the part of Landlord
to be performed pursuant to the terms of this
Lease. The indemnifications by Landlord set forth in this
Paragraph 10(d) are subject to any limitations
contained in Paragraph 11 or elsewhere in this Lease.
Furthermore, in case any action or proceeding be brought
against Tenant by reason of any claims or liability, Landlord
agrees to defend such action or proceeding at
Landlord´s sole expense by counsel reasonably satisfactory
to Tenant. The provisions of this Lease with respect
to any claims or liability occurring prior to the termination or
expiration of this Lease shall expressly survive
such termination or expiration of this Lease.
(e) Landlord shall maintain in force, at its sole cost and
expense (but subject to reimbursement as Direct
Operating Expenses), "All Risk" (sometimes known as "Special
Causes of Loss") property insurance, covering the
Building, for not less than its full replacement cost. Such
insurance may include such other coverages, such
as rental interruption insurance, as Landlord may deem
reasonably necessary, and may contain an endorsement
naming Landlord's mortgagee as loss payee, as its interests may
appear.
11. Waiver of 11. Each of Landlord and Tenant hereby releases
the other from any and all liability
Subrogation. 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 any other tenants or occupants of the
remainder of the Building in which the Premises are located;
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 coverage thereunder and
then only to the extent of the insurance
proceeds payable under such policies. Each of Landlord and
Tenant agrees that it will request its insurance
carriers to include in its policies such a clause or
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
cost, 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.
12. Service and 12. (a) Landlord shall maintain the public and
common areas of the Building,
Utilities. including lobbies, stairs, elevators, corridors and
restrooms, the windows in the Building, the mechanical,
plumbing and electrical equipment serving the Building, and the
structure itself, the roof, foundations,
exterior walls (including glass), grounds and parking areas in
reasonably good order and condition typical for
a first-class office building in metropolitan Atlanta, Georgia,
except for damage occasioned by the act of
Tenant, which damage shall be repaired by Landlord at Tenant's
expense. In the event Tenant requires or needs
to have one or more separate systems of either heating,
ventilating, air conditioning or other similar systems
over and above that provided by Landlord, the installation,
care, expenses and maintenance of each such system
shall be borne by and paid for by Tenant.
(b) Provided the Tenant shall not be in default hereunder, and
subject to the provisions elsewhere herein
contained and to the rules and regulations of the Building,
Landlord agrees to furnish to the Premises during
ordinary business hours (being 8:00 a.m. until 7:00 p.m. Eastern
time Monday through Friday, and 8:00 a.m. until
1:00 p.m. Eastern time on Saturday) of generally recognized
business days, to be determined by Landlord (but
exclusive, in any event, of Sundays and legal holidays), heat
and air-conditioning typical for a first-class
office building in metropolitan Atlanta, Georgia for the
comfortable use and occupation of the Premises,
replacement of bulbs for building standard fluorescent lights
and non-building standard lights, provided Tenant
stocks the bulbs for all of Tenant's non-building standard
lights, janitorial services during the times (but not
less than five (5) times per week) and in the manner that such
services are, in Landlord's judgment, customarily
furnished in comparable office buildings in the immediate market
area, and elevator service.
To the extent within Landlord´s reasonable control,
Landlord shall provide additional or after-hours heating
or air-conditioning at Tenant's request, provided that Tenant
shall pay to Landlord a reasonable charge for such
services as determined from time to time by Landlord. Tenant
agrees to keep and cause to be kept closed all
window coverings, if any, when necessary because of the sun's
position, and Tenant also agrees at all times to
cooperate fully with Landlord and to abide by all the
regulations and requirements which Landlord may prescribe
for the proper functioning and protection of said heating,
ventilating, and air-conditioning system and to
comply with all laws, ordinances and regulations respecting the
conservation of energy. Wherever
heat-generating machines, excess lighting or equipment are used
in the Premises which affect the temperature
otherwise maintained by the air-conditioning system, Landlord
reserves the right to install supplementary air
conditioning units in the Premises, and the cost thereof,
including the cost of electricity and/or water
therefor, shall be paid by Tenant to Landlord upon demand by
Landlord. Landlord agrees to furnish to the
Premises electricity for general office purposes and water for
lavatory and drinking purposes, subject to the
provisions of subparagraph 12(c) below. Landlord shall in no
event be liable for any interruption or failure of
utility services on the Premises, but Landlord will exercise due
diligence to furnish uninterrupted service.
(c) Tenant will not without the written consent of Landlord use
any apparatus or device in the Premises,
including without limitation, electronic data processing
machines, computers, and machines using excess lighting
or current which will in any way increase the amount of
electricity or water usually furnished or supplied for
use of the Premises as general office space; nor connect with
electric current, except through existing
electrical outlets in the Premises, or water pipes, any
apparatus or device for the purposes of using electrical
current or water. If Tenant in Landlord's judgment shall require
water or electric current or any other resource
in excess of that usually furnished or supplied for use of the
Premises as general office space (it being
understood that such an excess may result from the number of
fixtures, apparatus and devices in use, the nature
of such fixtures, apparatus and devices, the hours of use, or
any combination of such factors), Tenant shall
first procure the consent of Landlord, which Landlord may
refuse, to the use thereof, and Landlord may cause a
special meter to be installed in the Premises so as to measure
the amount of water, electric current or other
resource consumed for any such other use. The cost of any such
meters and of installation, maintenance, and
repair thereof shall be paid for by Tenant, and Tenant agrees to
pay Landlord promptly upon demand by Landlord
for all such water, electric current or other resource consumed,
as shown by said meters, at the rates charged by
the local public utility furnishing the same, plus any
additional expense incurred in keeping account of the
water, electric current or other resource so consumed. Landlord
shall not be in default hereunder or be liable
for any damages directly or indirectly resulting from, nor shall
the rental herein reserved be abated by reason
of (i) the installation, use or interruption of use of any
equipment in connection with the furnishing of any of
the foregoing utilities and services, (ii) failure to furnish or
delay in furnishing any such utilities or
services when such failure or delay is caused by acts of God or
the elements, labor disturbances of any
character, any other accidents, acts of terrorism, or other
conditions beyond the reasonable control of Landlord,
or by the making of repairs or improvements to the Premises or
to the Building, (iii) the limitation,
curtailment, rationing or restriction on use of water or
electricity, gas or any other form of energy or any
other service utility whatsoever serving the Premises or the
Building. Furthermore, Landlord shall be entitled
to cooperate voluntarily in a reasonable manner with the efforts
of national, state or local governmental
agencies or utilities suppliers in reducing energy or other
resources consumption.
(d) Any sums payable under this Paragraph 12 shall be considered
additional rent and may be added to any
installment of rent thereafter becoming due, and Landlord shall
have the same remedies for a default in payment
of such sums as for a default in the payment of rent.
(e) Tenant shall not provide any janitorial services without
Landlord's written consent and then only
subject to supervision of Landlord and by a janitorial
contractor or employees at all times satisfactory to
Landlord. Any such services provided by Tenant shall be at
Tenant's sole risk and responsibility.
(f) It shall be Tenant's responsibility and expense to install,
move, maintain, adjust, and repair its
property and fixtures, including but not limited to, its:
signage, pictures, bulletin boards, plaques,
furniture, filing cabinets, computer cables, computer equipment,
business machines, draperies, blinds, kitchen
appliances, special water heaters, kitchen cabinets, private
restroom fixtures, special air conditioning or
power conditioning equipment, locks for furniture and filing
cabinets, paging systems, modular furniture
components (including task lighting, flat wiring, and power
distribution cables), combination locks, specialty
electrical devices, exhaust fans, fire extinguishers, carpet
squares, and/or other furniture, fixtures, or
equipment installed by Tenant, or which were supplied,
specified, or requested by Tenant and installed by
Landlord.
13. Estoppel 13. Within seven (7) days following the
Commencement Date or any written
Certificate. request which Landlord may make from time to time,
Tenant shall execute and deliver to Landlord a certificate
substantially in the for
| 
