Exhibit 10.6
CROWN POINTE OFFICE
LEASE
THIS LEASE, made as of this 17th day
of October 2000, by and between CROWN POINTE, LLC, a Georgia
limited liability company (herein called “Landlord”),
and LEARNING TREE INTERNATIONAL USA, INC., a Delaware corporation
(herein called “Tenant”).
W I T N E S
S E T H :
1. FUNDAMENTAL LEASE
PROVISIONS :
The terms defined herein are an
integral part of this Lease:
A. “ Premises ”:
Landlord, for and in consideration of the covenants, agreements and
stipulations of Tenant herein contained, has leased and rented, and
by these presents leases and rents unto Tenant, and Tenant hereby
agrees to lease from Landlord, that certain space (herein called
“Premises”) shown on the floor plan attached hereto as
Exhibit “A” and made a part hereof and situated
on the Eleventh (11 th ) floor of the office building
located at 1050 Crown Pointe Parkway (herein called
“Building”) and known as Suite 1100, Atlanta, Georgia,
with no easement for light, air or view included in the Premises.
The Premises shall include the appurtenant right to the use, in
common with others, of lobbies, entrances, stairs, corridors,
elevators and other public portions of the Building. All the
windows and outside wall of the Premises and any space in the
Premises used for shafts, pipes, conduits, ducts, electric or other
utilities, sinks or other Building facilities, and the use thereof
and access thereto through the Premises for the purposes of
operation, maintenance and repairs, are reserved to
Landlord.
B. “ Base Rent ”:
shall mean Three Hundred Eighty Eight Thousand Seven Hundred Sixty
Nine and 00/100 Dollars ($388,769.00) per annum, payable in equal
installments, in advance, on the first day of each calendar month,
at the rate of Thirty Two Thousand Three Hundred and Ninety Seven
and 42/100 Dollars ($32,397.42) per month, subject to escalation as
more particularly described on Exhibit “G”.
C. “ Base Year ”:
shall mean 2001.
D. “ Square Feet in the
Building ”: shall mean 270,023 square feet, and includes
the Building common areas.
E. “ Square Feet in the
Premises ”: shall mean Sixteen Thousand Nine Hundred
Three (16,903) rentable square feet, including Tenant’s
pro rata share of Building common areas, and approximately Fifteen
Thousand Two Hundred and Thirteen (15,213) usable square
feet.
F. “ Tenant’s
Percentage ” or “ Tenant’s Share
”: shall mean Six and 26/100 percent (6.26%).
G. “ Land ”:
shall mean that certain parcel of real property as is more
particularly described on Exhibit “D” attached
hereto and made a part hereof.
H. “ Project ”:
shall mean all improvements now or hereinafter constructed on the
Land, including, without limitation, the Buildings known as 1040
and 1050 Crown Pointe Parkway (Phase I & Phase II) and any
common areas or improvements, parking areas or parking decks as
described in Exhibit “D”.
I. “ Deposit ”:
shall mean Thirty Two Thousand Three Hundred and Ninety Seven and
00/100 Dollars ($32,397.00).
J. “ Term ” or
“ Lease Term ”: as defined in Paragraph 2
below.
K. “ Commencement Date
”: as defined in Paragraph 2 below.
L. “ Landlord’s and
Tenant’s Mailing Addresses ”: as set forth in
Paragraph 22 below
M. “ Use of Premises
”: for general office purposes and business
technology-related training and related classes.
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2. TERM :
Tenant shall construct or install in
the Premises the improvements to be constructed or installed by
Tenant pursuant to Exhibit “B” attached hereto
and made a part hereof. The term of this Lease (herein called
“Term”) shall commence on (the date of such
commencement being herein called the “Commencement
Date”) the full execution of this Lease and the delivery of
the Premises to Tenant by Landlord. Unless sooner terminated as
herein provided, the Lease Term shall expire on the last day of the
120 th full month following the Rent
Commencement Date (defined below).
Within a reasonable time of
Landlord’s delivery of the Premises to Tenant, Landlord shall
furnish to Tenant a Commencement Date Agreement in the form
attached as Exhibit “C” and made a part hereof.
Tenant shall execute the Commencement Date Agreement and return a
signed copy to Landlord within five (5) days of its receipt of
the same. As of the Commencement Date and subject to
Landlord’s removal, at Landlord’s expense, of the
existing improvements in the Premises, Tenant takes and accepts
from Landlord the Premises “as is”, upon the terms and
conditions herein contained, Tenant agreeing that such condition is
suited for the uses intended by Tenant. This Lease shall be
effective and enforceable as between the parties hereof upon its
execution and delivery.
3. BASE RENT AND DEPOSIT
:
A. Commencing on March 1, 2001
(the “Rent Commencement Date”), and continuing on the
first day of each and every calendar month thereafter during the
Lease Term, in advance and without notice, Tenant shall pay to
Landlord the Base Rent for the Premises. The Base Rent for any
fractional month shall be prorated on a per diem basis.
“Rent” (which term shall include Base Rent as herein
described and additional rent payable under Paragraphs 4, 5, 13.B
and 13.F hereof or elsewhere herein) shall be paid to Landlord,
without deduction or offset, in lawful money of the United States
of America at the offices of Landlord or its Building manager
located in the Building, or to such other person or at such other
place as Landlord may from time to time designate in writing. On
the date of execution hereof Tenant shall deposit with Landlord the
Deposit.
Nothing contained herein shall
require Landlord to accept any tender of payment from Tenant for
less than the full amount then due under this Lease, including any
and all late charges, interest and attorney’s fees that may
then be due from Tenant in accordance with the express terms of
this Lease. Landlord may elect to accept less than the full amount
then due from Tenant hereunder; however, no payment by Tenant or
receipt by Landlord of such lesser amount shall be deemed to be
other than payment on account, and no restrictive endorsement or
statement on any check or payment shall be deemed to alter the
express provisions of this Lease, nor constitute an accord and
satisfaction. Landlord may accept less than the full amount then
due from Tenant without prejudice to Landlord’s right to
recover the balance of the full amount then due, or to pursue any
other remedies then available to Landlord under this Lease or
applicable law. In all events, including but not limited to
Landlord’s acceptance of a partial payment from Tenant, any
payment accepted by Landlord from Tenant shall be applied first to
retire the oldest receivables due from Tenant hereunder, then to
any current rental or other payment then due hereunder, and the
balance, if any, will be applied to any rental or other payment
which will become due from Tenant hereunder.
B. The Deposit shall be held by
Landlord as security for the faithful performance and observance by
Tenant of all of the agreements, covenants, conditions and
provisions of this Lease to be performed or observed by Tenant, and
Tenant shall not be entitled to any interest thereon. In the event
no event of default has occurred under the Lease during the first
three months following the Commencement Date, Landlord shall apply
a portion of the Deposit equal to $22,397.00 toward the Monthly
Base Rent accruing under the Lease for the second full month of the
Lease Term following the Rent Commencement Date. Landlord shall be
entitled to retain the balance of the Deposit in the amount of
$10,000.00 for the remainder of the Term pursuant to the terms of
this Lease. In the event Tenant fails to perform or observe any of
the agreements, covenants, conditions and provisions of this Lease
to be performed or observed by it, then at Landlord’s option,
Landlord may, but shall not be obligated to, apply the Deposit, or
so much thereof as may be necessary, to remedy any such failure by
Tenant. Tenant shall immediately upon request pay to Landlord any
sum necessary to restore the Deposit to the full amount specified
in paragraph 1I. Any remaining portion of the Deposit shall be
returned to Tenant following the termination of this Lease within
thirty (30) days after such termination.
4. REIMBURSEMENT FOR OPERATING
EXPENSES OF LANDLORD :
A. In addition to the Base Rent
payable under Paragraphs 3A and 1B hereof, Tenant agrees to
reimburse Landlord (as additional rent hereunder) for
Tenant’s Share of all operating expenses (the
“Operating Expenses”) as described in Exhibit
“F” attached hereto and by this reference made a
part hereof, of maintaining and operating (directly or indirectly)
the Building over and above the Base Year Operating
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Expenses. Operating Expenses shall include
(1) all costs of labor, materials, insurance, supplies,
equipment, tools and services for the management, operation,
maintenance and repair of the Project as a first-class office
building in metropolitan Atlanta, Georgia, including, without
limitation, the rental value of Landlord’s office in the
Project (not to exceed 2,000 rentable square feet); (2) all
real estate taxes, assessments and other governmental levies and
charges, general and special, ordinary and extraordinary,
unforeseen as well as foreseen, of any kind and nature (including
any interest on such assessments whenever the same are permitted to
be paid in installments) which may presently or hereafter be
imposed, levied, assessed or confirmed by any lawful taxing
authorities or which may become due and payable out of or for, or
which may become a lien or charge upon or against the whole, or any
part, of the Project, Land, Building and all other improvements now
or at any time during the Lease Term constituting a part of the
Project, or any taxes in lieu thereof which would be payable even
if the Project were the sole property of Landlord and the income
from the Project were the sole income of Landlord (all of which
real estate taxes, assessments, levies, charges and costs are
hereafter collectively referred to as “Taxes”);
Landlord shall have the sole, absolute and unrestricted right, but
not the obligation, to contest the validity or amount of the taxes
by appropriate proceedings, and if Landlord shall institute any
such contest of its own volition, it shall have the sole, absolute
and unrestricted right to settle any contest, proceeding or action
upon whatever terms Landlord may, in its sole discretion,
determine; and (3) cost, amortized over such reasonable period
as Landlord shall determine, together with interest at the rate of
one percent (1%) per annum above the prime rate charged by
SunTrust Bank from time to time on the unamortized balance, of any
capital improvements or structural alterations made to the Building
by Landlord that reduce or limit costs of any item of Operating
Expenses or are required under any governmental law or regulation
first enacted after the Commencement Date or by Landlord’s
insurance carrier; provided, however, that Operating Expenses shall
not include costs of tenant improvements, real estate
brokers’ commissions, interest directly related to financing
the Project, costs of services directly recoverable from tenants in
the Building and capital items, except the cost of capital
improvements specified above. Landlord and Tenant hereby
acknowledge and agree that some common area expenses may be
incurred generally with respect to the Project, as opposed to being
allocable solely to the Premises or to the Building in which the
Premises is located. The Building known as 1050 Crown Pointe
Parkway shall be allocated fifty-six and no/100 percent
(56%) of any such common area expenses attributable to, or
allocable to the common area of The Project. Tenant agrees to
reimburse Landlord for Tenant’s proportionate share of
Operating Expenses of the Project over Base Year Operating
Expenses.
B. Tenant’s Share of the
Operating Expenses (herein called “Tenant’s Operating
Expenses”) shall be in an amount equal to the product
obtained by multiplying the total Operating Expenses during each
calendar year of the Lease Term in excess of the Base Year
Operating Expenses by Tenant’s Percentage. Tenant’s
Operating Expenses shall be paid by Tenant as additional rent
hereunder. For each calendar year or part thereof occurring during
the Lease Term subsequent to the Base Year, Landlord shall have the
right to make a good faith estimate of Tenant’s Operating
Expenses for the upcoming calendar year and upon fifteen
(15) days’ notice to Tenant to require the payment by
Tenant of one-twelfth (1/12th) of such amount on the first
(1st) day of each month during the calendar year in question.
By May 1 of each calendar year following the year in which the
Lease Term commences, or as soon thereafter as practical, Landlord
shall furnish to Tenant a statement of Operating Expenses for the
prior calendar year, including therein the calculation of any
additional amount owed by Tenant to Landlord, which amount shall be
promptly paid by Tenant to Landlord as additional rent. At
Landlord’s option, any amounts owed by Landlord to Tenant
shall be refunded or applied against Rent due under the Lease. If,
for any reason other than the default of Tenant, this Lease shall
terminate on a day other than the last day of a calendar year, the
additional rent payable by Tenant pursuant to this Paragraph shall
be prorated on the basis which the number of days from the
commencement of such calendar year to and including such
termination date bears to three hundred sixty-five (365). During
any calendar year, Landlord may revise Tenant’s Operating
Expenses which are currently being paid if it appears to Landlord
that the actual Operating Expenses will vary from the anticipated
Operating Expenses by five percent (5%) or more.
C. Notwithstanding the foregoing
terms and conditions of Sections 4.A and 4.B above, except as
described below, from and after the Base Year, Landlord and Tenant
hereby agree that, for purposes of calculating Tenant=s pro rata
share of Operating Expenses, the aggregate Operating Expenses
(except for Uncontrollable Costs, as hereinafter defined) shall be
deemed not to increase by more than six percent (6%) from one
calendar year to the next calendar year, regardless of any actual
increases in Operating Expenses. Notwithstanding the foregoing
limitation, (i) the components of Operating Expenses related
to Taxes, utilities costs to the Building, Project or Premises, and
insurance premiums related to or payable in connection with the
Building, Project or Premises (all of the foregoing are herein
collectively referred to as “Uncontrollable Costs”)
shall not be subject to any limitation or cap, and there be no
limit on the amounts of Operating Expenses related to
Uncontrollable Costs that can be passed on by Landlord to Tenant or
that shall be due of Tenant at any time and from year to year, and
(ii) no specific line item of Operating Expenses shall be
subject to any limitation or cap.
D. Provided that no event of default
shall have occurred and be continuing on the part of
Tenant
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under this Lease, and Operating Expenses shall
have increased by more than six percent (6%) over the
Operating Expenses for the preceding calendar year, Tenant shall
have the right, during the sixty (60) day period following
delivery of Landlord’s accounting statement pursuant to
Section 4.B, at Tenant’s sole cost, to review in
Landlord’s offices Landlord’s records of Operating
Expenses for the subject calendar year. Such review shall be
carried out only by regular employees of Tenant or by a major
national accounting firm and not by any other third party. No
person conducting such an audit shall be compensated on a
“contingency” or other incentive basis. If, as of the
sixtieth (60th) day after delivery to Tenant of
Landlord’s accounting statement, Tenant shall not have
delivered to Landlord an Objection Statement (as defined below),
then such Landlord’s accounting statement shall be final and
binding upon Landlord and Tenant, and Tenant shall have no further
right to object thereto or to obtain any further review or
accounting thereof, all of which rights Tenant expressly waives. If
within such sixty (60) day period, Tenant delivers to Landlord
a written statement specifying objections to such Landlord
accounting statement (an “Objection Statement”), then
Tenant and Landlord shall meet to attempt to resolve such objection
within ten (10) days after delivery of the Objection
Statement. If such objection is not resolved within such ten
(10) day period, then either party shall have the right to
require that the dispute be submitted to binding arbitration under
the rules of the American Arbitration Association. Notwithstanding
that any such dispute remains unresolved, Tenant shall be obligated
to pay Landlord all amounts payable in accordance with this Section
(including any disputed amount). If such dispute results in an
agreement or an arbitrator’s determination that Tenant has
underpaid Tenant’s pro rata share of Operating Expenses,
Tenant shall pay such amount to Landlord immediately upon demand
for the same as additional Rent. If such dispute results in an
agreement or an arbitrator’s determination that Tenant is
entitled to a refund, Landlord shall, at its option, either pay
such refund or credit the amount thereof to the monthly Rent next
becoming due from Tenant, or if at the end of the Term, to promptly
refund the same to Tenant. If the audit discloses that Landlord has
overcharged Tenant by 7% or more during any Lease Year, Landlord
shall reimburse Tenant the reasonable, actual costs of the
audit.
5. TAXES PAYABLE BY TENANT
:
In addition to the Base Rent and
additional rent and all other charges to be paid by Tenant
hereunder, Tenant shall pay to Landlord, upon demand as additional
Rent hereunder, any and all taxes payable by Landlord (other than
net income taxes) whether or not now customary or within the
contemplation of the parties hereto: (i) upon, measured by or
reasonably attributable to the cost or value of Tenant’s
equipment, furniture, fixtures, improvements (whether constructed
by Landlord or Tenant) and other personal property located in the
Premises or by the cost or value of any leasehold improvement made
in or to the Premises by or for Tenant, other than Landlord’s
work under Exhibit “B” , regardless of whether
title to such improvement shall be in Landlord or Tenant;
(ii) upon, measured by or reasonably attributable to the Rent
payable hereunder, or any component thereof, including, without
limitation, any gross income tax or excise tax levied by the County
of DeKalb, the State of Georgia, the Federal Government or any
other federal, state, county, municipal or other governmental body
with respect to the receipt of such rent; (iii) upon or with
respect to the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof; and (iv) upon this
transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises. Landlord
agrees to pay all property taxes due on the Building, Land and
Project prior to delinquency.
6. USE OF PREMISES
:
Tenant shall not do or permit to be
done in or about the Premises or make any use thereof, nor bring or
keep or permit to be brought or kept therein, anything which is
prohibited by or will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which
may hereafter be enacted; or which is prohibited by or will
increase the existing rate or cause cancellation of any of
Landlord’s insurance policies for the Building; or which will
in any way obstruct or interfere with the rights of other tenants
of the Building, or injure or annoy them; or use or allow the
Premises to be used for lodging or for any improper, immoral,
unlawful or objectionable purpose; cause, maintain or permit any
nuisance in, on or about the Premises or commit or suffer to be
committed any waste in, on or about the Premises; or bring into the
Building any furniture, equipment materials or other objects which
overload the Building, its structure or any portion thereof or
electrical or mechanical systems thereof.
7. PREPARATION OF THE
PREMISES :
Tenant, at Tenant’s sole cost
and expense subject to Landlord’s contribution of the
Improvement Allowance, will provide the Tenant Work set forth in
Exhibit “B” attached hereto.
8. SERVICES :
Provided Tenant shall not be in
default under this Lease, Landlord agrees to provide to Tenant the
following services:
(a) General cleaning and janitorial
service, including reasonable waste disposal, five (5) days
per week, less Holidays;
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(b) Heating and air-conditioning
service (“HVAC”) daily on Mondays through Fridays, from
7:00 a.m. to 6:00 p.m. and on Saturdays from 9:00 a.m. to 1:00
p.m., with New Year’s Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, Christmas Day and any other national
holiday (herein collectively called the “Holidays”)
excepted; after hours HVAC service shall be available upon
reasonable prior request at the cost of $55.00 per hour; subject to
increase not more frequently than annually based upon increased
utility costs to Landlord;
(c) Elevator service daily on
Mondays through Fridays, inclusive, with Holidays excepted, from
7:00 a.m. to 6:00 p.m. and on Saturdays, if not a Holiday, from
9:00 a.m. to 1:00 p.m. At all other times Landlord shall have at
least one elevator servicing each of the floors;
(d) Electric current for lighting,
replacement bulbs for Building Standard lighting and reasonable
facilities for furnishing the usual and normal electric power for
office space. Notwithstanding the foregoing, Landlord shall provide
to Tenant electrical service in the amount of six (6) watts
per square foot, exclusive of ceiling lighting and HVAC. Landlord
shall have the right to prescribe uniform and reasonable charges
for bulb replacement services for non-standard lighting. Tenant
shall not, without Landlord’s prior written consent, use any
equipment, including, without limitation, air-conditioning units,
electronic data processing machines, punch card machines, or any
other machines which use electric current in excess of 110 volts,
which will increase the amount of electricity ordinarily furnished
for the use of the Premises as general office space or which
require clean (or dedicated) circuits or other special distribution
circuits;
(e) Window washing;
(f) Common use restrooms and toilets
including hot and cold water;
(g) Drinking water available on each
floor of the Building; and
(h) Twenty-four (24) hour
security services for the Building comparable to other similar
buildings in the area; provided, however, Landlord shall have no
responsibility to prevent, and shall not be liable to Tenant for,
any liability or loss to Tenant, its agents, employees and visitors
arising out of losses due to theft, burglary, or damage or injury
to persons or property, and Tenant hereby releases Landlord from
all liability for such losses, damages or injury unless any such
loss, damage or injury results solely from the gross negligence or
intentional acts of Landlord or Landlord’s employees or
agents acting within the scope of their employment, but excluding
independent contractors. The cost of such security services shall
be included in the Operating Expenses for the Building.
9. NON-LIABILITY AND
INDEMNIFICATION :
Unless due solely to the negligence
or willful misconduct of Landlord or its agents, neither Landlord
nor Landlord’s agents, officers, directors, shareholders,
partners or principals (disclosed or undisclosed) shall be liable
to Tenant or Tenant’s officers, agents, employees,
contractors, invitees, or licensees or any other occupant of the
Premises, and Tenant shall and does hereby indemnify and hold
Landlord, Landlord’s agents, and their respective agents,
employees, contractors, officers, directors, shareholders, partners
and principals (disclosed or undisclosed) harmless from and against
any and all loss, cost, liability, claim, damage, expense
(including, without limitation, reasonable attorneys’ fees),
penalty or fine incurred in connection with or arising from
(1) any default by Tenant in the performance of any of the
terms of this Lease on Tenant’s part to be performed, or
(2) the use or occupancy or manner of use or occupancy of the
Premises by Tenant or any person claiming or entering the Premises
by, through or under Tenant, or (3) any acts, omissions or
negligence of Tenant or any such person, or the contractors,
agents, employees, invitees, licensees of Tenant or any such person
in or about the Premises or the Project either prior to, during or
after the expiration of, the Lease Term. Tenant and all those
claiming by, through or under Tenant shall store their property in
and shall occupy and use the Premises and any improvements therein
and appurtenances thereto and all portions of the Project solely at
their own risk. Tenant and all those claiming or entering the
Premises by, through or under Tenant hereby release Landlord, to
the full extent permitted by law, from all claims of every kind,
including loss of life, bodily injury, consequential damages,
damage to merchandise, equipment, fixtures or other property
(including, without limitation, computer equipment) or damage to
business or for business interruption, arising directly or
indirectly out of or from or on account of such occupancy and use
or resulting from any present or future condition or state of
repair thereof or Landlord’s entry on the Premises as
described in Paragraph 11 below, unless due solely to the
negligence or willful misconduct of Landlord or its agents.
Landlord shall not be liable to Tenant or to any persons, firm,
corporation, or other business association claiming by, through, or
under Tenant for failure to furnish or for delay in furnishing any
service
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provided for in this Lease, and no such failure
or delay by Landlord shall be an actual or constructive eviction of
Tenant nor shall any such failure or delay operate to relieve
Tenant from the prompt and punctual performance of each and all the
covenants to be performed herein by Tenant; nor for any latent
defects in the Premises or Building; nor for defects in the
cooling, heating, electric, water, elevator, or other apparatus or
systems or for water discharged from sprinkler systems, if any, or
from water pipes and plumbing facilities in the Building; nor for
the theft, mysterious disappearance, or loss of any property of
Tenant whether from the Premises or any part of the Building; and
nor from interference, disturbance, or act to or omitted against
Tenant by third parties, including, without limitation other
tenants of the Building and any such occurrences shall not
constitute an actual or constructive eviction of Tenant.
Unless due to the negligence or
willful misconduct of Tenant, Tenant shall not be liable to
Landlord, and Landlord shall and does hereby indemnify and hold
Tenant and Tenant’s agents, and their respective agents,
employees, contractors, officers, directors, shareholders, partners
and principals (disclosed or undisclosed) harmless from and against
any and all loss, cost, liability, claim, damage, expense
(including, without limitation, reasonable attorneys’ fees),
penalty or fine incurred in connection with or arising from
(1) any default by Landlord in the performance of any of the
terms of this Lease on Landlord’s part to be performed, or
(2) any acts, omissions or negligence of Landlord or any such
person, or the contractors, agents, or employees of Landlord or any
such person in or about the Building or the Project either prior
to, during or after the expiration of, the Lease Term.
10. REPAIRS BY LANDLORD
:
Landlord shall maintain and repair
the common areas of the Building in a first class manner consistent
with all applicable laws and regulations, provided that Tenant
shall be responsible for any damages to the Building and its common
areas caused by any act or omission of Tenant, its agents,
employees or visitors. Except as otherwise set forth to the
contrary in the Lease, Landlord shall have no duty to Tenant to
make any repairs or improvements to the Premises and Tenant shall
be solely responsible therefor, except structural repairs necessary
for safety and tenantability not brought about by any act, omission
or neglect of Tenant, its agents, employees or visitors
.
11. RIGHT OF LANDLORD TO ENTER
PREMISES :
Tenant shall not change the locks on
any entrance to or doors in the Premises. Without any abatement of
Rent and with prior written notice to Tenant, except in the event
of an emergency, Landlord and its agents, employees and independent
contractors shall have the right to enter the Premises at such
times as Landlord deems reasonably necessary or desirable to
inspect and examine same, to make such repairs, additions,
alterations, and improvements as Landlord desires to make to the
Building and to exhibit said Premises to prospective purchasers or
tenants during the last twelve (12) months of the Term;
provided, however, Landlord shall use reasonable efforts not to
materially and adversely interfere with Tenant’s Use of the
Premises during normal business hours. In the event of emergency,
or if otherwise necessary to prevent injury to person or damage to
property, such entry to the Premises may be made by force without
any liability whatsoever on the part of Landlord for damage
resulting from such forcible entry.
12. INTENTIONALLY
OMITTED.
13. AGREEMENTS OF TENANT
:
A. Tenant shall not abandon the
Premises during the Lease Term.
B. Tenant shall, at its sole
expense, keep the Premises, excluding any structural elements, in
good repair and tenantable condition. If Tenant fails to keep the
Premises in good repair and tenantable condition, upon ten
(10) days written notice to Tenant, except in the event of an
emergency (in which case Landlord shall have no obligation to
provide notice to Tenant), Landlord can make such repairs as it
deems necessary to put the Premises in good and tenantable
condition and Tenant shall be liable to immediately reimburse
Landlord for the cost of such repairs as additional Rent
hereunder.
C. Tenant shall, at its sole cost
and expense, comply as to its use of the Premises, with all
statutes, regulations, rules, ordinances and orders of any
governmental body, department or agency thereof, and abide by and
observe the Rules and Regulations attached to this Lease as
Exhibit “E” and made a part hereof, and such
further uniform rules and regulations for the management of the
Building as may hereafter be established in writing by Landlord and
delivered to Tenant in accordance with the notice provisions of
this Lease.
D. Tenant shall report promptly in
writing to Landlord any defective condition in or about the
Premises known to Tenant.
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E. Before the termination of this
Lease (if not in default hereunder), Tenant shall remove from the
Premises all its personal property which this Lease allows Tenant
to remove and surrender such Premises and the keys thereto to
Landlord (whether or not in default hereunder) in the same
condition as at the beginning of this Lease, normal wear and tear,
casualty and condemnation only excepted. If Tenant shall fail to
remove all effects from the Premises upon termination of this Lease
for any cause whatsoever, Landlord may remove, sell, store or
otherwise dispose of the same, without liability to Tenant for loss
thereof, and Tenant agrees to pay Landlord on demand any and all
expenses incurred by Landlord thereby.
F. Tenant shall pay as additional
Rent, a late charge in the amount of five percent (5%) of the
outstanding delinquent balance or fifty dollars ($50.00), whichever
is greater, for any Rental payment not made within five
(5) days after the due date thereof; provided, however, the
above referenced late charge shall not apply to the first late
Rental payment received by Landlord from Tenant in any calendar
year provided such late payment is received by Landlord within
thirty (30) days of the date the same is due. Notwithstanding
the foregoing, Tenant shall be assessed a five percent
(5%) charge for each month, after the first month, any payment
remains outstanding, until paid in full. It is understood and
agreed that such late charges shall constitute liquidated damages
to compensate Landlord for additional bookkeeping expenses and
clerical services which would be required of the Landlord as a
result of the occurrence of events described in this Section. Such
damages are difficult or impossible to estimate accurately and it
is the intention of the parties to provide for liquidated damages
in such event. It is further agreed that the sum provided in this
Section is a reasonable pre-estimate of Landlord’s probable
loss, in the event of Tenant’s failure to make any Rental
payments within five (5) days after the due data thereof.
Tenant shall also pay Fifty and 00/100 Dollars ($50.00), promptly
upon demand, as a charge to cover Landlord’s administrative
and clerical expenses in the event a check given to Landlord by
Tenant is returned to Landlord unpaid by Landlord’s bank due
to insufficient funds or any other reason.
G. Tenant shall cooperate with
Landlord in complying with all regulations of any governmental
agency having jurisdiction of the Building, relating to the
conservation of energy, including, without limitation, any
regulations requiring the production of information regarding the
consumption of energy within the Building.
H. Tenant shall satisfy, discharge
or bond of record within twenty (20) days following the filing
thereof any mechanic’s lien filed against the Land, Premises,
Building or the Project for work or materials claimed to have been
furnished to Tenant.
14. INSURANCE :
Tenant shall carry, at its sole
expense and during the Lease Term, a policy or policies of
insurance, as follows: (i) fire and extended coverage
insurance insuring Landlord and Tenant’s interest in its
improvements to the Premises and any and all furniture, equipment,
supplies, and other property owned, leased, held or possessed by it
and contained therein, such insurance coverage to be in an amount
equal to the full replacement value of such improvements and
property, as such may increase from time to time, and
workmen’s compensation insurance as required by applicable
law; (ii) commercial general liability insurance insuring
Tenant, Landlord and any other person designated by Landlord,
against any and all liability for injury to or death of a person or
persons and for damage to property occasioned by or arising out of
any construction work being done on the Premises, or arising out of
the condition, use, or occupancy of the Premises, or in any way
occasioned by or arising out of the activities of Tenant, its
agents, employees, guests, or licensees in the Premises, the limits
of such policy or policies to be in amounts not less than Three
Million and no/100 Dollars ($3,000,000) with respect to any one
casualty or occurrence; and (iii) such other types of
insurance in form and amount which Landlord shall reasonably deem
to be prudent for Tenant to carry. Landlord and Tenant shall each
have included in all policies of insurance respectively obtained by
them, with respect to the Building and/or Project a waiver by the
insurer of all right of subrogation against the other in connection
with any loss or damage thereby insured against. To the full extent
permitted by law, Landlord and Tenant each waives all right of
recovery against the other for, and agrees to release the other
from, 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. All insurance policies procured and maintained by
Tenant pursuant to this Paragraph (i) shall be carried with
companies reasonably satisfactory to Landlord licensed in the State
of Georgia; (ii) shall be non-cancelable, except after twenty
(20) days’ written notice to Landlord; and
(iii) executed certificates of insurance with respect thereto
shall be delivered to Landlord prior to the Commencement Date, and
renewals thereof as required shall be delivered to Landlord at
least thirty (30) days prior to the expiration of each
respective policy term. All liability insurance shall name Landlord
and any other persons designated by Landlord as additional named
insured. Landlord covenants to maintain commercial general
liability insurance for the Common Areas of the Project.
7
15. ALTERATIONS :
Tenant shall make no improvements,
alterations or additions of any kind in or to the Premises without
first obtaining Landlord’s prior written consent, which
consent shall not be unreasonably withheld, delayed or conditioned.
Tenant shall pay the cost of all such improvements, alterations and
additions. If requested, Tenant shall furnish Landlord with final
contractors’ affidavits and full and final waivers of lien
and receipted bills covering all labor and materials. All
additions, hardware, non-trade fixtures and all improvements,
temporary or permanent, in or upon the Premises, whether placed
there by Tenant or by Landlord shall, unless Landlord requests
their removal, become Landlord’s property and shall remain
upon the Premises at the termination of this Lease by lapse of time
or otherwise without compensation, allowance or credit to
Tenant.
16. ASSIGNMENT AND SUBLETTING
:
Except as set forth to the contrary
herein, Tenant shall not, without at least thirty
(30) days’ prior written notice to Landlord and
the prior written consent of Landlord in each instance, directly or
indirectly, voluntarily or involuntarily, by operation of law,
merger, consolidation, reorganization or otherwise, mortgage,
hypothecate, pledge, encumber, sell, transfer or assign this Lease,
in whole or in part, or sublease all or any part of the Premises,
or permit the use or occupation of all or any part of the Premises
by any party (all of the foregoing being collectively referred to
as an “Assignment”). Landlord’s consent shall not
be unreasonably withheld, conditioned or delayed. Tenant shall
promptly reimburse Landlord for Landlord’s costs and
expenses, including, without limitation, reasonable
attorney’s fees, in connection with any proposed assignment
covered under this Paragraph 16. Landlord shall have thirty
(30) days from its actual receipt of Tenant’s notice of
Assignment within which to elect, in its sole and absolute
discretion, to: terminate this Lease as to the portion of the
Premises which is the subject of the proposed Assignment, provided
such Assignment requires Landlord’s consent; and/or reject
the proposed Assignment and to thereby continue this Lease in full
force and effect as if such Assignment had never been proposed;
and/or, enter into a new lease with the proposed assignee or any
other person, on such terms as Landlord and such assignee or other
person may agree; and/or, consent to the proposed Assignment on
such terms as Landlord deems necessary and appropriate. If this
Lease is canceled, the area of the Premises is reduced or a
sublease or assignment is made as herein provided, Tenant shall pay
Landlord a charge equal to the actual costs incurred by Landlord,
in Landlord’s reasonable judgment (including, but not limited
to, the use and time of Landlord’s personnel), for all of the
necessary legal, management, leasing or accounting services
required to accomplish such cancellation, reduction of area of the
Premises, assignment or subletting, as the case may be. In no event
shall Tenant be entitled to any rent, rentals, payment, profit or
any sum or cost of the assignee for such Assignment; Landlord shall
have the sole and absolute right to any and all amounts paid or
payable in excess of the Rent payable by Tenant, and Landlord may,
at its election, receive same directly from the assignee or require
Tenant to collect and remit same to Landlord as additional rent
hereunder. Landlord’s consent in one instance, and any other
act or acts of Landlord or its agents, shall not be deemed to
constitute consent to any subsequent Assignment. In the event of
any such assignment or subletting, Tenant shall remain fully liable
for the performance of all the terms and conditions of this Lease.
The listing of any name other than that of Tenant on any door of
the Premises, or on any Building directory or in any elevator or
otherwise, shall not operate as a substitute for or be deemed to
constitute the prior written consent of Landlord under this
Paragraph 16, nor shall it vest in the person so named any right or
interest in this Lease or the Premises, and it is understood and
agreed that any such naming or listing shall constitute a privilege
extended by Landlord revocable at any time in its sole and absolute
discretion. Further, notwithstanding the foregoing, Tenant shall
have the right, without Landlord’s prior consent, but upon
written notification to Landlord, and so long as the
creditworthiness of the assignee or sublessee remains the same or
better than Tenant, to assign this Lease and/or sublease the
Premises to (a) an affiliate, subsidiary or parent of Tenant
or to a subsidiary or affiliate of Tenant’s parent; or
(b) an entity with which Tenant is merged or consolidated; or
(c) an entity which purchases all of the assets of Tenant by
stock purchase or otherwise, provided such entity shall continue to
use the Premises in the same manner and for the same purposes of
Tenant herein. In the event of any assignment of the Lease, or
sublease of all or any part of the Premises, Tenant shall remain
fully liable for fulfilling its obligations under the
Lease.
17. SIGNS :
Tenant shall obtain the prior
written approval of Landlord prior to placing and maintaining, or
causing or permitting to be placed and maintained, any sign,
advertising matter or other thing of any kind, on, or which is
visible from, the exterior of the Premises. Landlord has the right
to remove any signs not approved by it and to recover from Tenant
the cost of such removal. Landlord, at Landlord’s sole
expense, shall provide Building standard signs, one (1) each
at Premises, and Lobby Building directory. Further, so long as this
Lease is in full force and effect and Tenant is not in default
hereunder, Landlord shall, at Tenant’s sole cost and expense,
place Tenant’s signage upon the existing pylon sign in front
of the Building, subject to Landlord’s prior written approval
of Tenant’s signage in Landlord’s reasonable
discretion.
8
18. DEFAULT :
A. The occurrence of any of the
following shall constitute an event of default hereunder by
Tenant:
(i) The Rent payable under this
Lease (including any additional rent) or any other sum of money due
hereunder is not paid within five (5) days after first
becoming due;
(ii) [Intentionally
Omitted];
(iii) Any petition is filed by or
against Tenant under any section or chapter of the National or
Federal Bankruptcy Act or any other applicable federal or state
bankruptcy, insolvency or other similar act, and, in the case of a
petition filed against Tenant, such petition is not dismissed
within sixty (60) days after the date of such
filing;
(iv) Tenant shall become insolvent
or transfer property in fraud of creditors;
(v) Tenant shall make an assignment
for benefit of creditors;
(vi) A receiver is appointed for any
of Tenant’s assets; or
(vii) Tenant fails to observe,
perform and keep each and every of the covenants, agreements,
provisions, stipulations and conditions herein contained to be
observed, performed and kept by Tenant (other than payment of
Rent), including, without limitation, Exhibit
“E” , and persists in such failure after thirty
(30) days’ notice by Landlord requiring that Tenant
remedy, correct, desist or comply; provided, however, if Tenant,
upon notice of default, promptly commences to cure such default and
Tenant diligently and continuously pursues such a cure during the
above referenced thirty (30) days, but Tenant fails to effect
such a cure within thirty (30) days, Tenant shall have such
additional time as is reasonably necessary to cure such
default.
B. Upon the occurrence of an event
of default, provided Tenant does not cure said default within the
period of time allowed for cure as set forth above, if any,
Landlord shall have the option to do and perform any one or more of
the following in addition to, and not in limitation of, any other
remedy or right permitted it by law or by this Lease:
(i) Terminate this Lease, in which
event Tenant shall immediately surrender the Premises to Landlord,
but if Tenant shall fail to do so, Landlord may, without further
notice and without prejudice to any other remedy Landlord may have
for possession or arrearages in rent, enter upon the Premises and
expel or remove Tenant and Tenant’s effects, by force if
necessary, without being liable to prosecution or any claim for
damages therefor; and Tenant agrees to indemnify Landlord for all
loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the Premises, or
through decrease in Rent, or otherwise; and/or
(ii) In addition to all Rent and
other amounts previously due and unpaid under the terms and
conditions of the Lease, Landlord shall be entitled to collect as
liquidated damages and not as a penalty the sum of (i) the
deferred present value of the Rent, including any other sums
treated as additional Rent hereunder, and all other sums provided
herein to be paid by Tenant during the remainder of the Lease Term
(the “Rent Balance”), less the Net Rental Value of the
Premises, as hereinafter defined. The term “Net Rental
Value” shall mean the fair rental value of the Premises for
the remainder of the Lease Term discounted to present value, less
the Landlord’s costs, expenses and attorney’s fees in
connection with preparation of the Premises for reletting and for
the reletting itself; provided however, the parties agree that in
no event shall the Net Rental Value exceed the Rent Balance;
(ii) the cost of performing any other covenants which would
have otherwise been performed by Tenant; (iii) all costs,
expenses and reasonable attorneys’ fees Landlord incurred in
connection with the termination of this Lease and eviction of
Tenant. The parties agree that the damages caused by Tenant’s
default would be difficult or impossible to accurately estimate and
that this measure of damages is a reasonable pre-estimate of the
Landlord’s probable loss resulting from Tenant’s
breach. The acceptance of the liquidated damages set forth in this
paragraph shall not constitute a waiver of any failure of Tenant
thereafter occurring to comply with any term, provision, condition
or covenant of this Lease; and/or reletting of the Premises. The
acceptance of such payment by Landlord shall not constitute a
waiver of any failure of Tenant thereafter occurring to comply with
any term, provision, condition or covenant of this Lease;
and/or
(iii) Enter the Premises as the
agent of Tenant, by force if necessary, without being
liable
9
to prosecution or any claim for damages
therefor, and relet the Premises as the agent of Tenant without
advertisement and by private negotiations and for any term Landlord
deems proper, and receive the rent therefor, and Tenant shall pay
Landlord any deficiency that may arise by reason of such reletting
on demand, but Tenant shall not be entitled to any surplus so
arising. Tenant shall reimburse Landlord for all costs of reletting
the Premises including, but not limited to, advertising expenses
and commissions; and/or
(iv) As agent of Tenant, do whatever
Tenant is obligated to do by the provisions of this Lease and may
enter the Premises, by force if necessary, without being liable to
prosecution or any claims for damages therefor, in order to
accomplish this purpose. Tenant agrees to reimburse Landlord
immediately upon demand for any expenses which Landlord may incur
in thus effecting compliance with this Lease on behalf of Tenant,
and Tenant further agrees that Landlord shall not be liable for any
damages resulting to Tenant from such action, whether caused by the
negligence of Landlord or otherwise.
C. No act or thing done by Landlord
or Landlord’s agents during the Term shall be deemed an
acceptance of a surrender of the Premises, and no agreement to
accept a surrender of the Premises shall be valid unless the same
be made in writing and executed by Landlord. Any waiver of or
redress for any violation of any covenant or condition contained in
this Lease or any of the Rules and Regulations now or hereafter
adopted by Landlord, shall not prevent a subsequent act, which
would have originally constituted a violation, from having all the
force and effect of an original violation. In case it should be
necessary or proper for Landlord to bring any action under this
Lease, or to consult, or place this Lease or any amount payable by
Tenant hereunder, with an attorney concerning or for the
enforcement of any of Landlord’s rights hereunder, then
Tenant in each and any such case shall pay Landlord its reasonable
attorneys’ fees. In the event of any default by Tenant under
the terms and provisions of this Lease, Landlord, in addition to
but not in lieu of or in limitation of, any other right or remedy
provided to Landlord under the terms of this Lease or otherwise,
shall have the right to be immediately repaid by Tenant the amount
of all sums expended by Landlord and not repaid by Tenant in
connection with preparing or improving the Premises to
Tenant’s specifications and any and all costs and expenses
incurred in renovating or altering space to make it suitable for
reletting.
D. All Rent and additional Rent and
other sums due under the Lease not paid when due shall accrue
interest in the amount of Wachovia Bank of Georgia’s Prime
Rate plus three percent (3%), from date due until paid by
Tenant.
19. HOLDING OVER :
Tenant shall have no right to hold
over beyond the expiration or earlier termination of this Lease
without the express written consent of the Landlord, which consent
Tenant shall obtain from Landlord no later than sixty
(60) days prior to the expiration of the Lease. Should Tenant
or any of its successors in interest continue to holdover the
Premises after the termination of this Lease, whether such
termination occurs by lapse of time or otherwise, with the express
written consent of Landlord, Tenant shall be deemed to be occupying
the Premises under a month-to-month periodic tenancy, and Tenant
shall pay to Landlord monthly rental equal to one hundred fifty
percent (150%) of the monthly rental (including Base Rent and
all other rental amounts) as would be payable if the Lease had not
been terminated or expired, and otherwise be subject to all the
covenants and provisions of this Lease insofar as the same are
applicable to a month-to-month periodic tenancy. Landlord and
Tenant agree that any such periodic tenancy may be terminated by
thirty (30) days prior written notice by either party to the
other party. Should Tenant or any of its successors in interest
continue to hold over the Premises after the termination of this
Lease, whether such termination occurs by lapse of time or
otherwise, without the written consent of Landlord, Tenant shall be
a Tenant at sufferance, subject to summary eviction as provided by
law. In the event of any unauthorized holding over, Tenant shall
indemnify the Landlord against all damages sustained by Landlord by
reason of such holdover and all claims for damages by any other
tenant to whom Landlord shall have leased all or any portion of the
leased Premises effective upon the termination of this
Lease.
20. DESTRUCTION OF OR DAMAGE TO
PREMISES :
If the Premises or the Building are
damaged by fire or other casualty, Landlord shall forthwith repair
the same, subject to the provisions of this Paragraph 20
hereinafter set forth, provided such repairs can, in
Landlord’s opinion, be made within sixty (60) days, and
this Lease shall remain in full force and effect
