|
<PAGE>
Exhibit 10.41
COLONIAL CENTER AT MANSELL OVERLOOK
LEASE AGREEMENT
WITH
COMPBENEFITS CORPORATION
DATED: JANUARY 1, 2005
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
1.
PREMISES...........................................................
2
2.
TERM...............................................................
2
3. COMPLETION OF
IMPROVEMENTS......................................... 2
4.
POSSESSION.........................................................
2
5. BASE RENTAL; SECURITY
DEPOSIT...................................... 2
6. BASE RENTAL
INCREASES.............................................. 3
7. ADDITIONAL
RENT.................................................... 3
8. BROKERAGE
DISCLOSURE............................................... 4
9.
USE................................................................
4
10. TENANT'S
ACCEPTANCE................................................ 4
11. ASSIGNMENT AND
SUBLETTING.......................................... 5
12. HOLDING
OVER....................................................... 6
13. ALTERATIONS AND
IMPROVEMENTS....................................... 6
14. REPAIRS TO THE
PREMISES............................................ 7
15. ENTRY BY
LANDLORD.................................................. 7
16. DEFAULT AND
REMEDIES............................................... 7
17. LANDLORD'S
SERVICES................................................ 9
18. DESTRUCTION OF
PREMISES............................................ 11
19. CONDEMNATION OF
PREMISES........................................... 11
20.
INSURANCE..........................................................
12
21. INDEMNIFICATION AND HOLD
HARMLESS.................................. 12
22. USUFRUCT
ONLY...................................................... 13
23.
WAIVER.............................................................
13
24. ENTIRE
AGREEMENT................................................... 13
25. LANDLORD'S
CONSENT................................................. 13
26.
NOTICES............................................................
13
27. TRANSFER OF
TENANT................................................. 14
28. SUCCESSORS AND ASSIGNS;
ATTORNMENT................................. 14
29. TIME IS OF THE
ESSENCE............................................. 14
30. CAPTIONS: GOVERNING
LAW............................................ 14
31.
SEVERABILITY.......................................................
14
32. SUBORDINATION; ESTOPPEL
CERTIFICATES............................... 15
33. ATTORNEYS'
FEES.................................................... 15
34. LIMITATION OF
LIABILITY............................................ 15
35. RULES AND
REGULATIONS.............................................. 15
36.
PARKING............................................................
16
37. HAZARDOUS
SUBSTANCES............................................... 16
38. FINANCIAL
STATEMENTS............................................... 17
39. JOINT AND SEVERAL
LIABILITY........................................ 17
40. QUIET
ENJOYMENT....................................................
17
41. TENANT
TAXES....................................................... 17
42. DAMAGE OR THEFT OF PERSONAL
PROPERTY............................... 17
43. FORCE
MAJEURE......................................................
18
44.
HEADINGS...........................................................
18
45. SUBMISSION OF
LEASE................................................ 18
46. SPECIAL
STIPULATIONS............................................... 18
</TABLE>
Exhibit "A" -- Premises
Exhibit "B" -- Rules and Regulations
Exhibit "C" -- Operating Expenses
Exhibit "D" -- Work Agreement
Exhibit "E" -- Special Stipulations
i
<PAGE>
COLONIAL PROPERTIES TRUST
LEASE AGREEMENT
This Lease Agreement ("LEASE") is made as of the 1st day of
January, 2005
(the "Effective Date"), by and between COLONIAL REALTY LIMITED
PARTNERSHIP, a
Delaware limited partnership (the "LANDLORD"); and COMPBENEFITS
CORPORATION, a
Delaware corporation (the "TENANT").
WITNESSETH:
1. PREMISES.
Landlord does hereby rent and lease to Tenant the following
described space
in the office complex known as Colonial Center at Mansell Overlook
(the "PARK")
in the office building designated as Colonial Center 100, 100
Mansell Court East
(the "BUILDING"): known as Suite 400, as shown on Exhibit "A" (the
"PREMISES").
For all purposes under this Lease, the Premises shall be deemed to
include
58,807 rentable square feet (including both Tenant's usable area
and common
areas attributable to Tenant's usable area), and Landlord and
Tenant acknowledge
and agree that said figure is accurate for all purposes used
herein. No easement
for light, air or view is granted or implied hereunder, however,
Tenant shall
have, as an appurtenance to the Premises, the non-exclusive right
to use the
common lobbies, corridors, stairways, elevators and loading
platform (if any) of
the Building in common with others together with the common
walkways, parking
areas and driveways in the Park necessary for common ingress and
egress to the
Building and the Premises (collectively, the "COMMON AREAS").
2. TERM.
The term of this Lease shall be for a period commencing at 12:01
a.m. on
the 1st day of January, 2005 (the "COMMENCEMENT DATE"), and
expiring at 11:59
p.m. on December 31, 2014 (the "TERM").
3. COMPLETION OF IMPROVEMENTS.
Landlord agrees to promptly proceed to prepare the Premises for
Tenant's
occupancy in accordance with the terms of this Lease and in
accordance with the
work schedule attached hereto as Exhibit "D".
4. POSSESSION.
Tenant shall be entitled to possession of the Premises as of the
Effective
Date.
5. BASE RENTAL; SECURITY DEPOSIT.
(a) Tenant shall pay in advance to Landlord at Landlord's address
for
rental payments set out in Paragraph 26 hereof, or at such other
place as
Landlord shall designate in writing, promptly, without demand,
deduction or
offset, on the first day of each month during the Term a Base
Rental beginning
on the Commencement Date (which date is also referred to herein as
the Rental
Commencement Date), which shall be as follows:
<TABLE>
<CAPTION>
Monthly
Months Base Rental Installment
----------------------------------- ----------- -----------
<S> <C> <C>
January 1, 2005 - December 31, 2005 $13.00 $ 63,707.58
January 1, 2006 - December 31, 2006 $13.00 $ 63,707.58
January 1, 2007 - December 31, 2007 $19.00 $ 93,111.08
January 1, 2008 - December 31, 2008 $21.00 $102,912.25
January 1, 2009 - December 31, 2009 $21.50 $105,362.54
January 1, 2010 - December 31, 2010 $22.00 $107,812.83
January 1, 2011 - December 31, 2011 $22.50 $110,263.12
January 1, 2012 - December 31, 2012 $23.00 $112,713.41
January 1, 2013 - December 31, 2013 $23.50 $115,163.70
January 1, 2014 - December 31, 2014 $24.00 $117,614.00
</TABLE>
<PAGE>
(b) "LEASE YEAR", as used herein, means a period of twelve (12)
consecutive
calendar months, or a portion thereof falling within the Term, with
the first
Lease Year commencing with the first day of the first calendar
month beginning
on or after the Commencement Date and each subsequent Lease Year
commencing on
each anniversary during the Term of the first day of the first
Lease Year. The
period, if any, from the Commencement Date to the beginning of the
first Lease
Year shall be treated as if it were part of the first Lease Year
under this
Lease for all purposes.
6. BASE RENTAL INCREASES. [Intentionally Deleted].
7. ADDITIONAL RENT.
(a) The following terms, as used in this Lease, shall have the
following
meanings:
"ESCALATION YEAR" means each calendar year, commencing with the
first full
calendar year following the calendar year in which the Commencement
Date occurs,
falling, in whole or in part, within the Term.
"BASE YEAR" means calendar year 2005.
"OPERATING EXPENSES" are defined in Exhibit "C".
"EXCESS EXPENSES" means the amount by which the annual Operating
Expenses
incurred by Landlord during each successive Escalation Year exceed
Operating
Expenses incurred by Landlord for the Base Year.
"TENANT'S SHARE" means 34.90%.
(b) Tenant shall pay to Landlord as additional rent (the
"ADDITIONAL
RENT"), for each Escalation Year during the Term, Tenant's Share
for such
Escalation Year.
(c) As soon as practicable prior to the beginning of each
Escalation Year
(including during any extension or renewal of the Term), Landlord
shall deliver
to Tenant a statement setting forth (i) Landlord's projection of
the Operating
Expenses for the upcoming Escalation Year, (ii) Tenant's Share for
the upcoming
Escalation Year and (iii) a computation of the monthly installments
to be paid
by Tenant toward Tenant's Share for the upcoming Escalation Year,
which amount
shall be one-twelfth (1/12) of the amount determined pursuant to
(ii) above. In
the event such statement is not delivered until after the
commencement of the
Escalation Year, Tenant shall continue to pay Tenant's Share based
on the prior
year's statement until the statement for the then-current
Escalation Year is
delivered, and when such statement is delivered, Tenant shall pay
to Landlord
the amount by which the monthly installments of Tenant's Share
shown on such
statement exceed the installments of Tenant's Share actually paid
by Tenant for
the expired months in the then-current Escalation Year within
thirty (30) days
after the rendering of such statement by Landlord, and from and
after the
delivery of such statement Tenant shall pay to Landlord in advance
on the first
day of each calendar month following the rendering of such
statement the monthly
installments provided for in such statement, such payments to
continue until
another statement is rendered. If at any time it appears to
Landlord that
Tenant's Share for such Escalation Year will exceed Landlord's
prior estimate of
Tenant's Share for such Escalation Year by more than five percent
(5%), Landlord
shall have the right to revise, by notice to Tenant, its estimate
for such
Escalation Year, and subsequent payments by Tenant for such
Escalation Year
shall be based upon the revised estimate of Tenant's Share for such
Escalation
Year.
(d) Commencing with Landlord's statement delivered following the
beginning
of the second full Escalation Year occurring during the Term,
Landlord shall
also set forth (i) the actual amount of the Operating Expenses
incurred during
the preceding Escalation Year, and (ii) any underpayment or
overpayment by
Tenant based on Tenant's monthly payment(s) (if any) of Tenant's
Share made
during the preceding Escalation Year. In the event of any
underpayment by
Tenant, Tenant shall pay the full amount of such deficiency to
Landlord within
thirty (30) days of receipt of Landlord's statement. Any
overpayment by Tenant
shall, at Landlord's option, either be (i) paid to Tenant within
thirty (30)
days of delivery of Landlord's statement, or (ii) applied to
Tenant's Share as
projected for the ensuing calendar year.
<PAGE>
(e) For the Escalation Year in which the Term expires, Landlord
shall
deliver to Tenant, as soon as practicable after the expiration of
the Term, a
statement setting forth (i) Tenant's Share determined by
annualizing Operating
Expenses actually incurred or accrued during the portion of the
Escalation Year
falling within the Term and then prorating Tenant's Share thereby
determined,
based on the number of days of such Escalation Year falling within
the Term, and
(ii) any underpayment or overpayment of Tenant's Share made during
that final
Escalation Year. In any underpayment, Tenant shall promptly pay the
full amount
thereof to Landlord. If Tenant has overpaid, Landlord shall
promptly reimburse
Tenant the full amount of such overpayment. The respective
obligations of the
parties hereto pursuant to this Paragraph 7 shall survive the
expiration or
earlier termination of the Lease.
(f) If the Building is not fully occupied during any calendar year
of the
Term, including for purposes hereof the Base Year, the Operating
Expenses and
the Excess Expenses for purposes of this Paragraph 7 shall be
determined as if
the Building had been fully occupied during such calendar year (and
fully
assessed for real estate tax purposes). For the purposes of this
Paragraph 7,
"fully occupied" shall mean occupancy of 100% of the rentable area
of the
Building.
(g) Landlord's books and records pertaining to the calculation of
Operating
Expenses for the immediately preceding calendar year of the Lease
Term may be
audited by Tenant or its representatives at Landlord's office where
Operating
Expense records are kept, at Tenant's expense, at any time within
one hundred
eighty (180) days after Landlord's annual statement is delivered to
Tenant for
such calendar year; provided that Tenant shall give Landlord not
less than
fifteen (15)) days' prior written notice of any such audit. The
audit may only
be conducted by the public accounting firm that performs Tenant's
general audit
or a public accounting firm approved by Landlord, which approval
shall not be
unreasonably withheld. If Landlord's calculations of Tenant's
Additional Rental
for the audited calendar year was incorrect, then Tenant shall be
entitled to a
prompt refund of any overpayment or Tenant shall promptly pay to
Landlord the
amount of any underpayment, as the case may be. If Landlord's
estimate was
incorrect by more than four percent (4%) of the actual Operating
Expenses for a
calendar year, Landlord shall reimburse Tenant for its actual audit
costs, not
to exceed $4,000.00 for any audit.
8. BROKERAGE DISCLOSURE.
COLONIAL PROPERTIES SERVICES, INC. ("CPSI") HAS REPRESENTED
LANDLORD IN
THIS LEASE. ICON COMMERCIAL INTERESTS, LLC ("ICON") HAS REPRESENTED
TENANT IN
THIS LEASE. EACH OF CPSI AND ICON SHALL BE PAID A COMMISSION BY
LANDLORD
PURSUANT TO THE TERMS OF A SEPARATE AGREEMENT. Tenant warrants that
there are no
other claims for brokers' commissions or finders' fees in
connection with its
execution of this Lease. Tenant hereby indemnifies and holds
Landlord and
Landlord's agents harmless from and against any and all loss, cost,
damage or
expense incurred by Landlord or Landlord's agents as a result of or
in
connection with a claim of any real estate agent or broker, if made
by, through
or under Tenant. Landlord hereby indemnifies and holds Tenant and
Tenant's
agents harmless from and against any and all loss, cost, damage or
expense
incurred by Tenant or Tenant's agents as a result of or in
connection with a
claim of any real estate agent or broker, if made by, through or
under Landlord.
Tenant shall, upon Landlord's request, cause the party representing
Tenant as
set forth above to provide to Landlord a broker's lien waiver,
sufficient to
waive such broker's lien rights to the Building and Park.
9. USE.
The Premises shall be used for business office and related
ancillary
purposes and for no other purposes. The occupancy rate of the
Premises shall in
no event be more than one (1) person per one hundred eighty (180)
rentable
square feet. The Premises shall not be used for any illegal
purposes, nor in
violation of any regulation of any governmental body, nor in any
manner to
create any nuisance or trespass, nor in any manner to vitiate the
insurance or
increase the rate of insurance on the Premises or the Building.
Tenant shall, at
its own expense, promptly comply with any and all municipal,
county, state and
federal statutes, regulations and/or requirements applicable or
relating to the
use, occupancy or condition of the Premises.
10. TENANT'S ACCEPTANCE.
Tenant acknowledges that it has been afforded an opportunity to
inspect the
Premises and accepts the Premises "as is" and as suited for
Tenant's intended
use thereof.
<PAGE>
11. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not, whether by operation of law or otherwise,
assign,
transfer, hypothecate or otherwise encumber this Lease or any
interest herein
and shall not sublet or permit the use by others of the Premises or
any portion
thereof without obtaining in each instance Landlord's prior written
consent,
which consent Landlord shall not unreasonably withhold or delay.
Without
limiting the foregoing prohibition, in no event shall Tenant assign
this Lease
or any interest herein, or sublet the Premises or any part thereof
or permit the
use of the Premises or any part thereof by any party, and Landlord
may withhold
its consent to any requested assignment or subletting (and the
withholding of
consent shall be conclusively deemed to be reasonable), (i) if the
proposed
assignee or subtenant is a party who would (or whose use would)
detract from the
character of the Building as a first-class office building, (ii) if
the proposed
assignment or subletting shall be to a governmental subdivision or
agency or any
person or entity who enjoys diplomatic or sovereign immunity, or
(iii) if such
proposed assignment, subletting or use would contravene any
restrictive covenant
affecting the Building (including any exclusive use) granted to any
other tenant
of the Building). Landlord's consent to one assignment, sublease,
transfer or
hypothecation shall not be deemed as a consent to any other or
further
assignment, sublease, transfer or hypothecation. Any such
assignment, sublease,
transfer or hypothecation without Landlord's prior written consent
shall be void
and shall, at Landlord's option, constitute a default under this
Lease. No
acceptance by Landlord of any rent or any other sum of money from
any assignee,
sublessee or other category of transferee shall release Tenant from
any of its
obligations hereunder or be deemed to constitute Landlord's consent
to any
assignment, sublease, transfer or hypothecation, and in any event,
Tenant shall
remain primarily liable on this Lease for the entire Term hereof
and shall in no
way be released from the full and complete performance of all the
terms,
conditions, covenants and agreements contained herein.
Notwithstanding the
above, in no event shall Tenant install, paint, affix or place any
sign(s) on or
about the Premises, Building or Park advertising or giving notice
that the
Premises are available "for lease", "for sublease", "for rent" or
the like.
(b) If Tenant should desire to assign this Lease or sublet the
Premises or
any part thereof, Tenant shall give Landlord prior written notice,
which notice
shall specify (i) the name and business of the proposed assignee or
sublessee,
(ii) the amount and location of the space affected, (iii) the
proposed effective
date and duration of the subletting or assignment, and (iv) the
proposed rental
or other consideration to be paid to Tenant by such sublessee or
assignee.
Landlord shall then have a period of fifteen (15) days following
receipt of such
notice within which to notify Tenant in writing that Landlord
elects (1) to
terminate this Lease as to the space so affected as of the date so
specified by
Tenant, in which event Tenant will on that date be relieved of all
further
obligations to pay rent hereunder as to such space, (2) to permit
Tenant to
assign or sublet such space, in which event if the proposed rental
between
Tenant and sublessee for the space affected is greater than the
Base Rental as
adjusted under this Lease applicable to the space affected, or if
consideration
other than rental is paid to Tenant by such assignee or sublessee
with respect
to the affected space, then fifty percent (50%) of such excess
rental and other
consideration, minus all reasonable sublease costs (including
tenant
improvements, free rent and commissions) shall be deemed additional
rent owed by
Tenant to Landlord under this Lease, and the amount of such excess
shall be paid
by Tenant to Landlord in the same manner that Tenant pays the Base
Rental
hereunder and in addition thereto, (3) to withhold consent to
Tenant's assigning
or subleasing such space and to continue this Lease in full force
and effect as
to the entire Premises, or (4) to consent to Tenant assigning or
subleasing
such space, subject to Landlord's approval of the assignment or
sublease
document. If Landlord should fail to notify Tenant in writing of
such election
within said fifteen (15) day period, Landlord shall be deemed to
have elected
option (3) above. Tenant agrees to reimburse Landlord in an amount
of $500.00
for Landlord's attorneys' fees and costs incurred in connection
with the
processing and documentation of each request made pursuant to this
Paragraph.
Notwithstanding the giving by Landlord of its consent to any
assignment or
sublease with respect to the Premises, no such assignee or
sublessee may
exercise any expansion option, right of first refusal option, or
renewal option
under this Lease except in accordance with a separate written
agreement entered
into directly between such assignee or sublessee and Landlord, and,
absent
Landlord's written agreement to the contrary, all option rights of
Tenant, and
all lease rights of Tenant created pursuant to the exercise of any
option
rights, with respect to any space so assigned or subleased shall
be
extinguished.
(c) The sale or transfer of Tenant's voting stock (if a
corporation) or a
partnership interest (if a partnership) or member interest (if a
limited
liability company) in Tenant resulting in the transfer of control
of a majority
of such stock or interest, or the occupancy of the Premises by any
successor
firm of Tenant or by any firm into which or with which Tenant may
become merged
or consolidated shall be deemed an assignment of this
<PAGE>
Lease without requiring the prior written consent of Landlord,
provided that
such transferee, successor or assignee is of equal or greater
financial strength
to Tenant.
12. HOLDING OVER.
If Tenant remains in possession after the expiration of the Term,
or the
termination of this Lease, it shall be a tenant at sufferance only
and there
shall be no renewal hereof by operation of law. In such event, such
occupancy
shall be at an amount equal to one hundred twenty-five percent
(125%) of the
Base Rental for the first two (2) months, then one hundred fifty
percent (150%)
of the Base Rental (the "Holdover Rent") in effect immediately
prior to the
expiration or termination of this Lease and shall otherwise be
subject to all of
the covenants and provisions of this Lease. The Holdover Rent shall
be paid in
advance in monthly increments and shall not be prorated for a
period of less
than one month. Tenant shall be liable to Landlord for all damages
(excluding
consequential damages) incurred by Landlord as a result,(1) in
whole or in part,
of Tenant's failure to deliver possession of the Premises to
Landlord upon
expiration or termination of the Term.
13. ALTERATIONS AND IMPROVEMENTS.
(a) Subject to the terms of the following sentence, no alteration
in, or
addition to, the Premises will be made without first obtaining
Landlord's prior
written consent, which Landlord may grant or withhold for any
reason or for no
reason, and any such work consented to, although paid for by
Tenant, will be
done by Landlord with Landlord reserving the right to charge Tenant
a fee equal
to ten percent (10%) of the cost of the work for supervision of
such alterations
or additions. With respect to any alteration, addition or
improvement which does
not affect the structure of the Building, does not affect any of
the Building's
systems (e.g., mechanical, electrical or plumbing), does not
diminish the
capacity of such Building's systems available to other portions of
the Building,
is not visible from the common areas or exterior of the Building,
and is in full
compliance with all laws, orders, ordinances, directions,
requirements, rules
and regulations of all governmental authorities, Landlord's consent
shall
not be unreasonably withheld. Notwithstanding the foregoing
provisions of this
paragraph, Landlord's consent shall not be required for
alterations, additions
or improvements of a non-structural nature in an amount less than
$25,000.00
provided Tenant gives Landlord advance notice of the work and
coordinates
scheduling with Landlord, uses contractors approved by Landlord,
provides
Landlord a description of the Work and requires the contractors to
abide by
Landlord's rules for construction.
(b) If Tenant's actions, omissions or occupancy of the Premises
shall cause
the rate of fire or other insurance either on the Building or the
Premises to be
increased, Tenant shall pay, as additional rent, the amount of any
such increase
promptly upon request by Landlord.
(c) All erections, additions, fixtures and improvements, whether
temporary
or permanent in character (except only the trade fixtures and
movable office
furniture of Tenant) made in or upon the Premises, shall be and
remain
Landlord's property and shall remain upon the Premises at the
expiration or
earlier termination of this Lease, with no compensation to Tenant.
Landlord
reserves the right to require Tenant to remove any such
improvements or
additions at the termination hereof or within fifteen (15) days
thereafter.
Landlord may, at its election, repair any damage to the Premises
caused by or in
connection with the removal of any articles of personal property,
business or
trade fixtures, alterations, improvements and installations, and
all costs for
such repairs shall be at Tenant's expense.
(d) Tenant will not install a wireless fidelity network ("WIFI
Network")
within the Premises without first obtaining Landlord's prior
written consent,
which Landlord will not unreasonably withhold provided Tenant
executes an
amendment to the Lease regulating the installation and use of the
WIFI Network.
<PAGE>
14. REPAIRS TO THE PREMISES.
Landlord shall not be required to make any repairs or improvements
to the
Premises, except structural repairs necessary for safety and
tenantability.
Tenant shall, at its own cost and expense, keep in good repair all
portions of
the Premises, including but not limited to windows, glass and plate
glass,
doors, interior walls and finish work, floors and floor coverings,
and
supplemental or special heating and air conditioning system, and
shall take good
care of the Premises and its fixtures and permit no waste, except
normal wear
and tear with due consideration for the purpose for which the
Premises are
leased. Landlord shall maintain and replace, at its cost and
expense, all
Building standard light bulbs and lighting fixtures in the
Premises. Tenant
shall maintain and replace, at its cost and expense, all light
bulbs and
fixtures in the Premises that are not the Building's standard light
fixtures and
bulbs. Any repairs required under this Paragraph, although paid for
by Tenant,
will be performed by Landlord, with Landlord reserving the right to
charge
Tenant a fee equal to two percent (2%) of the cost of the work.
15. ENTRY BY LANDLORD.
Landlord or its agents may enter the Premises at reasonable hours
and upon
reasonable notice (except in cases of emergency) to exhibit same to
prospective
purchasers or tenants, to inspect the Premises to see that Tenant
is complying
with a11 of its obligations hereunder, and to make repairs,
improvements,
alterations or additions which Landlord shall deem necessary for
the safety,
preservation or improvement of the Building or to make repairs or
modifications
to any adjoining space. Landlord shall be allowed to take all
material into and
upon the Premises that may be required to make such repairs,
improvements,
alterations or additions for the benefit of Tenant without in any
way being
deemed or held guilty of an eviction of Tenant, and the Base
Rental, Additional
Rent and other charges hereunder shall in no wise abate while said
repairs,
improvements, alterations or additions are being made. All such
repairs,
improvements, alterations and additions shall be done during
ordinary business
hours, provided that Landlord shall make reasonable efforts to
conduct such
repairs, improvements, alterations or additions in a manner which
will not
interfere with the conduct of Tenant's business.
16. DEFAULT AND REMEDIES.
(a) In addition to the circumstances hereinbefore set forth, the
occurrence
of any of the following shall constitute a default of this Lease by
Tenant:
(i) the filing of any voluntary petition or similar pleading under
any
section or sections of any bankruptcy or insolvency act by or
against Tenant or
the institution of any voluntary or involuntary proceeding in any
court or
tribunal to declare Tenant insolvent or unable to pay Tenant's
debts as they
mature and, in the case of an involuntary petition or proceeding,
the petition
or proceeding is not dismissed within forty-five (45) days from the
date it is
filed, or the making of an assignment for the benefit of its
creditors by
Tenant, or the appointment of a trustee or receiver for Tenant or
for the major
part of Tenant's property;
(ii) Tenant's failure to pay the monthly Base Rental, Additional
Rent
or any other sum due hereunder, if such nonpayment continues for
five (5) or
more days after the date notice of such late payment is provided to
Tenant;
provided, however, if more than one (1) payment due of Tenant
hereunder in any
twelve (12) month period during the Term is not made until after
notice of such
late payment is received by Tenant, then it shall be a default
hereunder by
Tenant if any subsequent payment due of Tenant hereunder in the
same twelve (12)
month period is not made within five (5) days after the date the
same is due;
(iii) Tenant's default in the prompt and full performance of any
other
provision of this Lease and Tenant does not cure the default within
twenty (20)
days after written demand by Landlord that the default be cured
(unless the
default involves a condition dangerous to person or property, or
which will
become worse if no immediate action is taken to cure such default,
in which
event such default shall be cured forthwith upon Landlord's
demand); provided,
however, if Tenant has commenced efforts to cure the default during
such period
and diligently prosecutes such efforts to completion, Tenant shall
have
additional time (not to exceed ninety (90) days) to complete such
cure as is
reasonably necessary under the circumstances in question.
(iv) the levy, execution or attachment against assets of Tenant
located in the Premises;
<PAGE>
(v) Tenant's failure to take possession or occupancy of the
Premises;
(vi) Tenant shall do or permit to be done anything that creates a
lien
upon the Premises or the Building and such lien is not removed or
discharged
within thirty (30) days of the filing thereof;
(vii) Tenant shall fail to return a properly executed instrument
to
Landlord in accordance with the provisions of Paragraph 32 hereof
within the
time period provided for such return following Landlord's request
for the same
as provided in Paragraph 32, which failure is not cured within ten
(10) days
after written notice thereof is given by Landlord to Tenant.
(b) Upon the occurrence of any default by Tenant as aforesaid,
Landlord, in
addition to any and all other rights or remedies it may have at law
or in
equity, shall have the option of pursuing any one or more of the
following
remedies:
(i) Landlord shall have the immediate right of reentry and may
remove
all property from the Premises to a warehouse or elsewhere at the
cost of, and
for the account of Tenant, all without being deemed guilty of
trespass or
becoming liable for any loss, damage or damages which may be
occasioned thereby;
(ii) Landlord may terminate this Lease by giving notice of
termination, in which event this Lease shall expire and terminate
on the date
specified in such notice of termination, with the same force and
effect as
though the date so specified were the date herein originally fixed
as the
expiration date of the Term of this Lease, and all rights of Tenant
under this
Lease and in and to the Premises shall expire and terminate, and
Tenant shall
remain liable for all obligations under this Lease arising up to
the date of
such termination, and Tenant shall surrender the Premises to
Landlord on the
date specified in such notice;
(iii) Landlord may terminate this Lease as provided in
subparagraph
16(b)(ii) hereof and recover from Tenant all damages Landlord may
incur by
reason of Tenant's default, including, without limitation, a sum
which, at the
date of such termination, represents the then present value
(calculated at the
rate of twelve percent (12%) interest per annum) of the excess, if
any, of (A)
the Base Rental (including without limitation, increases in Base
Rental pursuant
to Paragraph 6 hereof), Additional Rent, and all other sums which
would have
been payable hereunder by Tenant for the period commencing with the
day
following the date of such termination and ending with the date
hereinbefore set
for the expiration of the full term hereby granted, over (B) the
aggregate
reasonable rental value of the Premises (less reasonable brokerage
commissions,
attorneys' fees and other costs relating to the reletting of the
Premises) for
the same period, all of which excess sum shall be deemed
immediately due and
payable;
(iv) Landlord may, without terminating this Lease, declare
immediately
due and payable all Base Rental, Additional Rent, and other rents
and amounts
due and coming due under this Lease for the entire remaining Term
hereof,
together with all other amounts previously due, at once; provided,
however, that
such payment shall not be deemed a penalty or liquidated damages
but shall
merely constitute payment in advance of rent for the remainder of
said Term;
upon making such payment, Tenant shall be entitled to receive from
Landlord all
rents received by Landlord from other assignees, tenants and
subtenants on
account of said Premises during the Term of this Lease, provided
that the monies
to which Tenant shall so become entitled shall in no event exceed
the entire
amount actually paid by Tenant to Landlord pursuant to this clause
(iv) less all
costs, expenses and attorneys' fees of Landlord incurred in
connection with the
reletting of the Premises; or
(v) Landlord may, from time to time without terminating this
Lease,
and without releasing Tenant in whole or in part from Tenant's
obligation to pay
Base Rental, Additional Rent and all other amounts due under this
Lease and
perform all of the covenants, conditions and agreements to be
performed by
Tenant provided in this Lease, make such alterations and repairs as
necessary to
relet the Premises, and, after making such alterations and repairs,
Landlord
may, but shall not be obligated to, relet the Premises or any part
thereof for
such term (which may be for a term extending beyond the Term of
this Lease) at
such rental and upon such other terms and conditions as Landlord in
its
reasonable discretion may deem advisable or acceptable; upon each
reletting, all
rentals received by Landlord from such reletting shall be applied
first, to the
payment of any indebtedness other than rent due hereunder from
Tenant to
Landlord; second, to the payment of any costs and expenses of such
reletting,
including brokerage fees and attorneys' fees, and of costs of such
alterations
and repairs; third, to the payment of the Base Rental, Additional
Rent and other
charges due and unpaid hereunder; and the residue, if any,
<PAGE>
shall be held by Landlord and applied against payments of future
Base Rental,
Additional Rent or other charges as the same may become due and
payable
hereunder. In no event shall Tenant be entitled to any excess
rental received by
Landlord over and above charges that Tenant is obligated to pay
hereunder,
including Base Rental, Additional Rent and all other charges; if
such rentals
received from such reletting during any month are less than those
to be paid
during the month by Tenant hereunder, including Base Rental,
Additional Rent and
all other charges, Tenant shall pay any such deficiency to
Landlord, which
deficiency shall be calculated and paid monthly. Tenant shall also
pay Landlord
as soon as ascertained and upon demand all costs and expenses
incurred by
Landlord in connection with such reletting and in making any
alterations and
repairs which are not covered by the rentals received from such
reletting;
notwithstanding any such reletting without termination, Landlord
may at any time
thereafter elect to terminate this Lease for such previous
breach.
(c) Landlord's reentry, demand for possession, notice that the
tenancy
hereby created will be terminated on the date therein named,
institution of an
action of forcible detainer or ejectment or the entering of a
judgment for
possession in such action or any other act or acts resulting in the
termination
of Tenant's right to possession of the Premises shall not relieve
Tenant from
Tenant's obligation to pay all sums due hereunder, except as herein
expressly
provided. Landlord may collect and receive any Base Rental,
Additional Rent or
other charges due from Tenant, and the payment thereof shall not
constitute a
waiver of or affect any notice or demand given, suit instituted or
judgment
obtained by Landlord, or be held to waive, affect, change, modify
or alter the
rights or remedies which Landlord has in equity or at law or by
virtue of this
Lease.
(d) If Landlord commences any proceedings for nonpayment of Base
Rental,
Additional Rent or other sums due hereunder, Tenant win not
interpose any
counterclaim of whatever nature or description which is not
directly related to
the Lease in any such proceeding. This shall not, however, be
construed as a
waiver of Tenant's right to assert such claims in any separate
action or actions
brought by Tenant. Any action brought under or with respect to this
Lease must
be brought in a court located in Atlanta, Georgia, and having
jurisdiction
therein.
(e) All sums past due from Tenant under this Lease shall bear
interest at
twelve percent (12%) per annum, but in no event in excess of the
maximum lawful
rate, from due date until paid in full.
(f) Except as expressly provided in this Lease, Tenant hereby
waives any
and every form of demand and notice prescribed by statute or other
law,
including without limitation the notice of any election of remedies
made by
Landlord under this Paragraph, demand for payment of any rent, or
demand for
possession.
(g) All rights and remedies of Landlord created or otherwise
existing at
law are cumulative, and the exercise of one or more rights or
remedies shall not
be taken to exclude or waive the right to exercise any other.
(h) Tenant shall and hereby agrees to pay all costs and expenses
incurred
by Landlord in enforcing any of the covenants and agreements of
this Lease, or
as a result of an action brought by Landlord against Tenant for an
unlawful
detainer of the Premises, and all such costs, expenses and
attorneys' fees
shall, if paid by Landlord, be paid by Tenant to Landlord within
fifteen (15)
days of Landlord's written demand therefor, together with interest
at eighteen
percent (18%) per annum, but in no event in excess of the maximum
lawful rate,
from the date of Landlord's payment thereof.
(i) In the event of a default hereunder beyond applicable periods
of notice
and cure, Landlord may declare Tenant in default under any or all
other
agreements between Landlord and Tenant or any affiliate of Tenant,
whether in
effect now or following the date of this Lease.
17. LANDLORD'S SERVICES.
(a) Landlord shall render certain services and supplies in
accordance with
and as described in this Paragraph 17, as follows:
(i) Landlord shall cause the Premises to be cleaned at least five
(5)
nights weekly.
(ii) Landlord shall furnish electric current for Building
standard
tenant lighting and small business machinery only from electric
circuits
designated by Landlord for Tenant's use. Such circuits will be
fed
<PAGE>
into one or more of the existing electrical panel(s) in the
electrical closets
located on the same Building floor as the Premises. Tenant's usage
of said
panels on any given floor shall not exceed Tenant's pro rata share
(based on
rentable square footage) of the panels' capacity. Tenant will not
use any
electrical equipment which in Landlord's opinion will overload the
wiring
installations or interfere with the reasonable use thereof by other
users in the
Building. Tenant will not, without Landlord's prior written
consent, which
consent shall not be unreasonably withheld or delayed in each
instance, connect
any items such as non-Building standard tenant lighting, vending
equipment,
printing or duplicating machines, computers (other than desktop
word processors
and personal computers), auxiliary air conditioners, and other
computer-related
equipment to the Building's electrical system, or make any
alteration or
addition to the system. If Tenant desires any such items,
additional 208/120
volt electrical power beyond that supplied by Landlord as provided
above,
electric current in excess of 208/120 volts for purposes other than
Building
standard tenant lighting, or other special power requirements or
circuits, then
Tenant may request Landlord to provide such supplemental power or
circuits to
the Premises, which request Landlord may grant or withhold in its
reasonable
discretion. If Landlord furnishes such power or circuits, Tenant
shall pay
Landlord the cost of the design, installation and maintenance of
the facilities
required to provide such additional or special electric power or
circuits and
the cost of all electric current so provided at such rates as may
be determined
from time to time by Landlord. Landlord require separate electrical
metering of
such supplemental electrical power or circuits to the Premises, and
Tenant shall
pay, on demand, the cost of the design, installation and
maintenance of such
metering facilities. Tenant shall not have access to any electrical
closets in
the Building; any electrical engineering design or contract work
shall be
performed at Tenant's expense by Landlord or an electrical engineer
and/or
electrical contractor designated by Landlord. All invoices
respecting the
design, installation and maintenance of the facilities requested by
Tenant shall
be paid within thirty (30) days of Tenant's receipt thereof.
Landlord's charge
to Tenant for the cost of electric current so provided shall be
paid within
thirty (30) days of receipt of invoice by Tenant.
(iii) Landlord shall furnish seasonable air conditioning and
heating
during normal business hours (8:00 A.M. to 6:00 P.M. Monday through
Friday and
8:30 A.M. until 1:00 P.M. Saturday), said heat or air conditioning
not being
furnished Sunday or holidays observed by Landlord. Holidays which
are observed
by Landlord are New Years Day, Memorial Day, Independence Day,
Labor Day,
Thanksgiving Day and the following Friday, and Christmas Day.
Should Tenant
desire either heating or air conditioning at other times, Landlord
agrees to
provide same, but at Tenant's expense at such hourly rates as may
be determined
from time to time by Landlord, which charge Tenant shall pay
promptly upon being
billed therefor. The current charge for after hours heating or
air-conditioning
is $15.00 per hour which charge shall not increase by more than
five percent
(5%) annually, however if Landlord's cost of electricity increases
by more than
five percent (5%) annually, Landlord may increase this charge by a
like amount.
If Tenant installs equipment which in Landlord's opinion produces
enough heat to
cause comfort problems in the Building or any part thereof, or if
Tenant desires
a supplemental air conditioning system and Landlord has approved
same, then
Landlord may, at its option, either cause to be designed or permit
Tenant to
design a supplemental air conditioning system, subject to
Landlord's approval,
and Landlord shall install such system at Tenant's expense
substantially in
accordance with such design. If Tenant has requested such
supplemental system,
Tenant shall be responsible for determining that the design of such
system is
adequate for its needs. Tenant agrees to pay Landlord for such
equipment,
design, installation, metering and consumption of electricity for
supplemental
air conditioning and to maintain such equipment at Tenant's
expense. If such
supplemental air conditioning is installed at the request of either
Tenant or
Landlord in a manner that utilizes the Building condenser water
loop, Tenant
shall pay a one-time tap fee, payable within thirty (30) days of
invoicing from
Landlord, at Landlord's then established rate for such. Tenant
shall also pay
for the necessary pump and piping to connect the supplemental air
conditioning
equipment to the Building condenser water risers. Regardless of
whether such
supplemental air conditioning is tapped into the Building condenser
water loop.
Tenant shall pay (in addition to the one-time tap fee, if
applicable) each
calendar quarter in advance, as additional rent, a usage charge
determined by
Landlord based upon the tonnage of the cooling equipment installed.
Such usage
charge as determined by Landlord may be increased at any time and
from time to
time, provided, however, that in no event will such usage charge,
as increased
hereunder, ever be decreased. All systems and/or equipment
installed, as
provided hereinabove, shall become part and parcel with the
Building and forever
remain Landlord's property.
(iv) Landlord shall maintain the landscaping for the Building to
the
same level as similar Class A buildings in the North Fulton market
of Atlanta,
Georgia.
<PAGE>
(b) Except in cases of its gross negligence, Landlord shall not be
liable
for any damages directly or indirectly resulting from the
installation, use or
interruption of use of any equipment in connection with the
furnishing of
services referred to in this Paragraph, and particularly any
interruption in
services by any cause beyond the immediate control of Landlord,
provided
Landlord shall use reasonable diligence in the restoration of such
services.
Notwithstanding anything contained herein to the contrary, if any
essential
services (such as HVAC, passenger elevators if necessary for
reasonable access,
electricity, water), supplied by Landlord are interrupted, and the
interruption
does not result from the negligence or willful misconduct of
Tenant, its
employees, invitees, or agents, Tenant shall be entitled to an
abatement of Base
Rental and Additional Rent. The abatement shall begin on the fourth
(4th)
consecutive business day of the interruption or when Tenant stops
using the
Premises because of the interruption, whichever is later. The
abatement shall
end when the services are restored. Excluding the destruction of
Premises
covered by Paragraph 18 below, Tenant shall have the option to
cancel the Lease
if the interruption unreasonably and materially interferes with
Tenant's use of
or access to the Premises for at least one hundred twenty (120)
consecutive
days. To exercise this option Tenant must give Landlord notice of
the
cancellation within ten (10) days from the end of the one hundred
twenty (120)
day period. During any such interruption, Landlord shall use
commercially
reasonable efforts to restore the services.
18. DESTRUCTION OF PREMISES.
Should the Premises be so damaged by fire or other cause that
rebuilding or
repairs cannot, in the opinion of Landlord's architect, be
completed within one
hundred eighty (180) days from the date of the fire, or other cause
of damage,
then either Landlord or Tenant may terminate this Lease by written
notice to the
other given within thirty (30) days of the date of such damage or
destruction,
in which event rent shall be abated from the date of such damage or
destruction.
However, if the damage or destruction is such that rebuilding or
repairs can be
completed within one hundred eighty (180) days, Landlord covenants
and agrees,
subject to the provisions of this Paragraph 18, to make such
repairs with
reasonable promptness and dispatch and to allow Tenant an abatement
in the rent
for such time as the Premises are untenantable or proportionately
for such
portion of the Premises as shall be untenantable, and Tenant
covenants and
agrees that the terms of this Lease shall not be otherwise
affected. Such
repairs and restoration relating to Tenant's initial leasehold
improvements or
improvements otherwise made by or for Tenant shall be made at
Tenant's expense
in accordance with plans and specifications approved by Landlord
and Tenant.
Repairs and restoration to base Building improvements required by
this Lease to
be furnished by Landlord at its expense (other than Tenant's
initial leasehold
improvements) shall be made at Landlord's expense. In no event
shall Landlord be
required to repair or replace any trade fixtures, furniture,
equipment or other
property belonging to Tenant; nor shall Landlord have any
obligation to incur
any cost to repair, reconstruct or restore the Premises or the
Building in
excess of insurance proceeds from the casualty necessitating such
work that are
made available to Landlord, under its sole control, for such
work.
Notwithstanding anything to the contrary contained in this
Paragraph, Landlord
shall not have any obligation whatsoever to repair, reconstruct or
restore the
Premises when the damage resulting from any casualty occurs during
the last
twelve (12) months of the Term.
19. CONDEMNATION OF PREMISES.
(a) If any part of the Premises shall be taken or appropriated by
any
public or quasi-public authority under the power of eminent domain,
Landlord
shall have the right, at its option, to terminate this Lease
effective as of the
date possession is taken by said authority (unless all of the
Premises are so
taken in which case this Lease shall terminate), and shall be
entitled to any
and all income, rent or award and any interest thereon whatsoever
which may be
paid or made in connection with such public or quasi-public use or
purpose.
Tenant hereby assigns to Landlord its entire interest in any and
all such
awards, and shall have no claim against Landlord for the value of
any portion of
the unexpired Term. If a part of the Premises shall be so taken or
appropriated,
and Landlord does not elect to terminate this Lease, the Base
Rental thereafter
to be paid shall be reduced by an amount bearing the same ratio to
the total
amount of Base Rental as the rentable area of the Premises so taken
bears to the
entire Premises.
(b) If any part of the Building other than the Premises shall he so
taken
or appropriated, Landlord shall have the sole right, at its option,
to terminate
this Lease and shall he entitled to the entire award as above .
provided, and in
such case Tenant shall likewise have no claim against Landlord for
the value of
any unexpired Term of this Lease.
<PAGE>
(c) Nothing hereinbefore contained shall be deemed to deny to
Tenant its
right to claim from the condemning authority compensation or
damages for its
trade fixtures and personal property, provided the condemning
authority makes a
separate award therefor.
20. INSURANCE.
(a) Tenant shall carry special form/all risk insurance insuring
Tenant's
interest in the improvements and betterments to the Premises,
including initial
improvements installed by Landlord, and any and all furniture,
equipment,
supplies and other property owned, leased, held or possessed by it
and contained
therein, in an amount equal to the full replacement cost thereof,
subject to
deductible amounts reasonably satisfactory to Landlord, plus
business
interruption insurance respecting Tenant's business conducted from
the Premises
in an amount reasonably satisfactory to Landlord. Tenant shall also
procure and
maintain throughout the Term a policy or policies of commercial
general
liability insurance, insuring Tenant, Landlord, any manager of the
Building, the
asset manager of the Building, and any mortgagee which has an
interest in or
lien upon the Building, as additional insureds, against liabilities
for injury
to or death of a person or persons and for damage to property
occasioned by or a
rising out of any construction work being done on the Premises, or
a rising out
of the condition, use or occupancy of the Premises, or in any way
occasioned by
or arising out of the negligence of Tenant or its agents, employees
or licensees
in the Premises, or other portions of the Building, Building site
and adjacent
parking areas in amounts not less than $5,000,000.00 with respect
to any one
casualty or occurrence and $1,000,000.00 with respect to property
damage,
including fire legal liability.
(b) All insurance policies procured and maintained by Tenant
pursuant to
this Paragraph 20 shall be carried with companies licensed to do
business in the
State of Georgia with a Best policyholder rating of not less than
A-, and a Best
financial size rating of not less than VIII, and shall be
noncancelable or
subject to material change except after thirty (30) days written
notice to
Landlord and any designees of Landlord. Such policies or duly
executed
certificates of insurance with respect thereto shall be delivered
to Landlord
prior to the date that Tenant takes possession of the Premises, and
renewals
thereof as required shall be delivered to Landlord at least thirty
(30) days
prior to the expiration of each respective policy term.
(c) Landlord and Tenant shall each have included in all policies
of
insurance maintained hereunder, a waiver by the insurer of all
right of
subrogation in connection with any loss or damage thereby insured
against. Any
additional premium for such waiver shall be paid by the party
obtaining the
insurance. To the full extent permitted by law, Landlord and Tenant
each waive
all right of recovery against the other for, and agree to release
the other from
liability for, loss or damage to the extent such loss or damage is
covered by
valid and collectible insurance in effect at the time of such loss
or damage or
would be covered by the insurance required to be maintained under
this Lease by
Landlord or Tenant.
21. INDEMNIFICATION AND HOLD HARMLESS.
(a) Tenant hereby indemnifies and holds Landlord and its agents
and
employees, harmless from and against any injury, expense, damage,
liability or
claim, imposed on Landlord and its agents and employees, 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 Park or
of any other
person in or about the Building, or administrative or criminal
action by a
governmental authority, whether such injury, expense, damage,
liability or claim
results from the act, omission, negligence, misconduct or breach of
any
provisions of this Lease by Tenant, the agents, servants, invitees
or
employees of Tenant or from any accident or incident occurring
within the
Premises, by Tenant, the agents, servants, contractors, invitees or
employees of
Tenant. Tenant further agrees to reimburse Landlord and its agents
and employees
for any costs or expenses, including, but not limited to, court
costs and
reasonable attorneys' fees, which Landlord and its agents and
employees may
incur in investigating, handling or litigating any such claim or
any action by a
governmental authority. Notwithstanding the terms of the above, an
exception to
Tenant's assumption of and liability for any and all claims
whatsoever by their
very nature, cause of origin, which relate to the Premises, the
Building and
equipment and apparatus located thereon and walks and entry thereto
shall be
claims resulting from Landlord's default or upon acts of negligence
or willful
misconduct committed by Landlord, its agents, contractors or
employees.
Notwithstanding the terms of the above, Landlord hereby agrees to
indemnify and
hold harmless Tenant, its agents, contractors and employees from
any and all
loss, damage, liability, costs and expenses (including, without
limitation,
attorney fees a
|
