Exhibit 10.22
SHOPPING CENTER: LINDBERGH PLAZA
LOCATION: ATLANTA, GEORGIA
TENANT: ABSOLUTE CARE, INC.
LANDLORD: NORO-BROADVIEW HOLDING COMPANY, B.V.
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TABLE OF CONTENTS
SECTION CAPTION PAGE
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1 Basic Lease Provisions 1
2 Demised Premises 3
3 Lease Year 3
4 Term 3
5 Basic Annual Rental 4
6 Percentage Rental 5
7 Gross Sales Defined 5
8 Tenant's Records 5
9 Payment of Rentals 6
10 Real Estate Taxes 6
11 Covenant of Quiet Possession 7
12 Use of the Demised Premises 7
13 Radius Clause 8
14 Operation by Tenant 8
15 Parking Index 8
16 Common Areas 8
17 Expense of Common Areas 9
18 Security 10
19 Utilities, Electricity, and Others 10
20 Tenant's Improvements, Fixtures, and Mechanic's Liens 11
21 Landlord's Maintenance 11
22 Tenant's Maintenance 12
23 Entry, Inspection, Posting, and Display 13
24 Applicable Laws 13
25 Indemnification 13
26 Tenant's Insurance 14
27 Landlord's Insurance - Tenant's Reimbursement 15
28 Waiver of Subrogation 15
29 Fire or Other Casualty 16
30 Eminent Domain 16
31 Financial Information of Tenant 17
32 Assignment and Subletting 17
33 Ownership of Certain Property 17
34 Holdover by Tenant 18
35 Force Majeure 18
36 Additional Construction 18
37 Bankruptcy 18
38 Successors and Assigns 19
39 Attornment 19
40 Events of Default 19
41 Remedies of Landlord 20
42 Remedies Cumulative; No Waiver for Indulgence 23
43 Notices 23
44 Subordination 23
45 Environmental Matters 24
46 Leasing Agent 26
47 Additional Property 26
48 Mortgage Defined 26
49 Limited Liability 27
50 Other Agreements 27
51 Interest Rate 27
52 Time of Essence 27
53 Captions 27
54 Modification 27
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SECTION CAPTION PAGE
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55 Severability 28
56 Relationship of Parties 28
57 Security Deposit 28
58 Construction and Interpretation 29
59 Promotion 29
60 Relocation of Demised Premises 29
61 Termination 29
62 As-Is 29
Exhibits:
A Lease Plan
B Description of the Shopping Center Land
C Outline of Landlord's Work and Tenant's Work
D Sign Criteria
E Tenant's Certificate
F Subordination, Non-Disturbance, and Attornment Agreement
G Rules and Regulations
H Delivery of Possession Date Certificate
I Lease Term Declaration
J Construction Exhibit
K Guaranty of Lease
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THIS AGREEMENT OF LEASE (this "Lease") is dated August 9, 2000, is by and
between NORO-BROADVIEW HOLDING COMPANY, B.V. (hereinafter called "Landlord"),
and ABSOLUTE CARE, INC., a Delaware Corporation, a wholly owned subsidiary of
Avesis Incorporated (hereinafter called "Tenant"), whose address is 10324 South
Dolfield Road, Owings Mills, MD 21117. Landlord and Tenant contract as follows:
BASIC LEASE PROVISIONS
SECTION 1.
The following terms, whenever used in this Lease with the first letter of
each word capitalized, shall have wherever applicable only the meanings set
forth in this Section, unless such meanings are expressly modified, limited or
expanded elsewhere herein:
A. Demised Premises: That certain space outlined in red on Exhibit A (Lease
Plan), containing:
frontage of approximately --- (---), irregular shape
------------
depth of approximately --- (---), irregular shape
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and a total floor area of approximately six thousand six hundred ninety seven
(6,697) square feet (the "Floor Area of the Demised Premises"), and being a part
of Lindbergh Plaza, a shopping center owned by Landlord in Fulton County,
Atlanta, Georgia (the "Shopping Center") on the land identified as "Shopping
Center Land" on Exhibit A (Lease Plan) and described on Exhibit B, such Demised
Premises being further known and numbered as A400. (Section 2)
B. Lease Term: Three (3) Lease Years (Section 4)
C. Basic Annual Rental (Section 5):
For Lease Years
November 1, 2000 thru
October 31, 2002: Forty Three Thousand Three Hundred
Ninety Six and 56/100 ($43,396.56)
Dollars per annum, payable monthly at
the rate of Three Thousand Six Hundred
Sixteen and 38/100 ($3,616.38) Dollars.
For Lease Year
November 1, 2002 thru
October 31, 2003: Fifty Six Thousand Seven Hundred Ninety
and 56/100 ($56,790.56) Dollars per
annum, payable monthly at the rate of
Four Thousand Seven Hundred Thirty Two
and 55/100 ($4,732.55) Dollars.
D. Percentage Rental (Section 6): NOT APPLICABLE
E. Trade Name: Absolute Care. (Section 12)
F. Permitted Use: A medical center for infectious diseases including the
sale of prescription medication for its patients only. There shall be no surgery
of any kind performed in the Demised Premises, nor shall there be any abortions
performed in the Demised Premises, nor shall Tenant's customers, patients, or
invitees use any illegal drugs or similar substances in the Demised Premises
and/or in the Common Area of the Shopping Center, nor shall Tenant's customers,
patients or invitees do anything which is unlawful or in contradiction of the
Certificate of Occupancy of the Shopping Center, nor cause or create any
inconvenience or annoyance to other tenants in the Shopping Center.
G. Major Stores: Any store within the Shopping Center containing more than
twenty thousand (20,000) square feet of gross floor area.
H. Floor Area of the Shopping Center: The gross floor area of the Shopping
Center minus the gross floor area of all Major Stores. The term gross floor area
shall mean the floor area of an enclosed area available for the exclusive use
and occupancy by tenants or occupants.
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I. Tenant's Pro Rata Share: To determine Tenant's Pro Rata Share of any
cost or charge in this Lease first deduct from such cost or charge the
contribution, if any, made by any Major Store towards such cost or charge and
then multiply the remainder of such cost or charge by a fraction, the numerator
of which shall be the Floor Area of the Demised Premises and the denominator of
which shall be the Floor Area of the Shopping Center.
J. Real Estate Taxes and Utility Charges: Tenant pays Tenant's Pro Rata
Share of real estate taxes and utility charges for the Shopping Center Land and
any improvements thereon. (Section 10)
K. Common Area Maintenance Charge: Tenant pays Tenant's Pro Rata Share of
Landlord's Operating Costs. (Section 17)
L. Landlord's Insurance - Tenant's Reimbursement: Tenant pays Tenant's Pro
Rata Share of Landlord's insurance cost. (Section 27)
M. Advertising and Promotional Service or Merchants' Association:
Renovation-Opening Fee does not apply. Annual Promotion Fee does not apply.
(Section 59)
N. Landlord's Mailing Address: Noro-Broadview Holding Company, B.V. c/o
Atlanta Realty Management Group, Inc., 2581 Piedmont Road, Suite A580, Atlanta,
Georgia 30324 until further notice (Section 9A).
Rental Payment Address: Noro-Broadview Holding Company, B.V.
C/o Atlanta Realty Management Group, Inc.
2581 Piedmont Road, Suite A580
Atlanta, Georgia 30324
O. Tenant's Mailing Address: Same as indicated hereinabove on this Page 1,
unless a contrary address is set forth in this Section 1.O. ________________ .
P. Tenant's Records: Tenant's Records shall be maintained at the Demised
Premises unless a contrary address is set forth in this Section 1.P.
Q. Security Deposit: Tenant shall deposit with Landlord upon execution of
this Lease by Tenant, the total sum of $11,161.67, of which sum, $5,580.83
represents the first month's Basic Annual Rental and charges, and $5,580.83
represents security for the faithful performance and observance by Tenant of
each and every term and covenant of this Lease. (Section 57)
R. Exhibits: The following exhibits are attached to this Lease and are
hereby incorporated herein:
(1) Exhibit A - Lease Plan. Tenant acknowledges that the Lease Plan is
tentative and that Landlord in its sole discretion may change the leasing plan,
including the number and type of current or future tenants, may change the
shape, size, location, number, and extent of improvements shown thereon, and may
eliminate or add any improvements to any portion of the Shopping Center,
provided that Landlord shall not change the size or dimensions of the Demised
Premises by more than ten percent (10%), or the location thereof by more than
thirty (30') feet, without Tenant's consent. One or more of the Shopping Center
buildings may be moved in any direction or directions any distance within the
Shopping Center Land.
(2) Exhibit B - Description of the Shopping Center Land.
(3) Exhibit C - Outline of Landlord's Work and Tenant's Work.
(4) Exhibit D - Sign Criteria
(5) Exhibit E - Tenant's Certificate
(6) Exhibit F - Subordination, Non-Disturbance, and Attornment
Agreement
(7) Exhibit G - Rules And Regulations
(8) Exhibit H - Landlord's Property
(9) Exhibit I - Guaranty of Lease
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References in this Section 1 to other Sections are for convenience and do not
limit any of the provisions of this Lease. Each reference in this Lease to any
of the Basic Lease Provisions contained in the Section 1 shall be construed to
incorporate all of the terms provided by such Basic Lease Provisions. In the
event of any conflict between any Basic Lease Provisions and the balance of this
Lease, including any exhibits, rider, addenda or amendment, then such balance
shall control.
S. Renovation - Grand Opening Date: November 1, 2000.
DEMISED PREMISES
SECTION 2.
Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord,
for the Lease Term, at the rental, and upon the terms and conditions herein set
forth, the Demised Premises. The Demised Premises have been or shall be
constructed in accordance with the procedures and obligations described as
Landlord's Work and Tenant shall finish the Demised Premises, at Tenant's
expense, in accordance with the procedures and obligations described as Tenant's
Work, with both Landlord's Work and Tenant's Work being outlined in Exhibit C.
Tenant shall submit its plans for Tenant's Work to Landlord for Landlord's
approval as set forth in Section 20 and Exhibit C. The number of square feet of
floor area within the Demised Premises, and where applicable the Shopping
Center, includes, but is not limited to, vestibules for the exclusive use by any
tenant. All areas shall be calculated by using dimensions from the centerline of
the interior or party walls, from the exterior faces of exterior walls, and from
the front of the front lease line, as shown on drawings furnished or approved by
Landlord. The Floor Area of the Demised Premises is calculated by the Landlord's
Architect and is approximate and may, at Landlord's option, be recalculated by
Landlord's Architect at any time during the term of this Lease. The calculation
by Landlord's Architect will be final in determining the size of the Demised
Premises. Tenant may, with the prior written consent of Landlord, use the space
above the Demised Premises for the installation of such equipment and facilities
and under such conditions as Landlord may in writing approve. Tenant
acknowledges that neither Landlord nor Landlord's agents have made any
representations or warranties as to the suitability of the Demised Premises for
the conduct of Tenant's business.
LEASE YEAR
SECTION 3.
The first "Lease Year" shall commence on the first day of the Lease Term
and shall end on the last day of the twelfth full calendar month following the
commencement of the Lease Term. Thereafter each Lease Year shall consist of a
successive period of twelve (12) calendar months.
TERM
SECTION 4.
A. The Lease Term shall begin on the date hereof, and Tenant shall be
obligated to pay rentals as herein required, commencing on the "Rent
Commencement Date" which date shall be:
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(ii) If the Demised Premises are existing on the date hereof, then the
following date:
(2) November 1, 2000.
Tenant accepts the Demised Premises "as is" and in the condition in which they
currently exist. Tenant acknowledges that Landlord is not required to complete
any work within the Demised Premises prior to Tenant's occupancy. The outline of
Landlord's Work in Exhibit C is made solely in the event that Landlord is
required under the Lease to restore the Demised Premises following a casualty or
a taking by Eminent Domain. Tenant shall promptly commence and diligently
complete Tenant's Work as required by and in accordance with Exhibit C and
Tenant's approved plans.
B. Landlord may postpone the date for the commencement of the Lease Term
and the date on which Tenant is to open for business, for the purpose of
effecting a joint opening with a substantial part of the remainder of the
Shopping Center or in the event that a prior tenant fails to timely vacate all
or any part of the Demised Premises. Landlord makes no representation as to the
period or periods that any Major Stores or any other tenant or occupant in the
Shopping Center will be open for business, and this Lease will not be affected
by any closing of any such business.
C. After the Rent Commencement Date, and within ten (10) days after
requested by Landlord from time to time, Tenant will execute and deliver to
Landlord and any one or more firms, persons or corporations named by Landlord, a
certificate and agreement substantially in the form of Exhibit E, or any
reasonable modification thereof required by Landlord or any Mortgagee or
proposed Mortgagee. If any default is alleged by Tenant, then all facts alleged
in regard thereto shall be included in such document. Failure of Tenant to
execute and deliver such certificate and agreement within the time period stated
shall constitute an unqualified acceptance of the Demised Premises and
acknowledgment by Tenant that the statements contained on Exhibit E as delivered
to Tenant are true and correct without exception, and that Tenant agrees to the
provisions contained therein. If this Lease is guaranteed, Tenant and Guarantor
covenant that the Guarantor will sign said certificate and agreement.
BASIC ANNUAL RENTAL
SECTION 5.
Tenant agrees to pay to Landlord without set-off or deduction of any kind
Basic Annual Rental in equal monthly installments in advance on the first day of
each full calendar month during the Lease Term. The first such payment shall be
due on the Rent Commencement Date and shall prorate the Basic Annual Rental for
the period from the Rent Commencement Date to the first day of the first full
calendar month in the Lease Term hereof, which prorated Basic Annual Rental
shall be computed by multiplying one monthly installment of Basic Annual Rental
by a fraction the numerator of which is the number of calendar days from the
Rent Commencement Date to the first calendar day of the first full calendar
month of the Lease Term and the denominator of which is thirty (30).
PERCENTAGE RENTAL
SECTION 6.
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GROSS SALES DEFINED
SECTION 7.
TENANT'S RECORDS
SECTION 8.
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PAYMENT OF RENTALS
SECTION 9.
A. All rental and other payments shall be made by Tenant to the order of
and delivered to the rental payment address listed in Section 1 or in such other
manner at such other place as may be designated from time to time by Landlord in
writing at least ten (10) days prior to the next ensuing payment date. Tenant
may pay rental and other payments by check unless notified by Landlord in
writing to pay by cashier's check.
B. In addition to the Basic Annual Rental and Percentage Rental required to
be paid pursuant to the terms of this Lease, Tenant agrees to pay, as additional
rental, all sums and other charges required to be paid by Tenant pursuant to the
provisions and Exhibits to this Lease, whether or not the same be designated
"additional rental", and Landlord shall have the same remedies for Tenant's
failure to pay same when and as required, as if it constituted Basic Annual
Rental.
C. If Tenant fails to pay, when due and payable, any Basic Annual Rental,
Percentage Rental or any additional rental, other amounts or charges of any kind
or character provided in this Lease, such unpaid amounts shall bear interest;
but, in addition to such interest, if Landlord shall not have received any
monthly installments of Basic Annual Rental by the fifth day of the month such
installment is due, a late charge equal to the greater of One Hundred Dollars
($100.00) or five percent (5%) of the then monthly payment amount shall be
assessed and shall accrue for each month until such rental and all the interest
and late charges are paid in full; such late charges imposed by Landlord shall
not waive or be in lieu of Landlord's other remedies provided in this Lease for
default hereunder.
REAL ESTATE TAXES
SECTION 10.
During the Lease Term, Tenant agrees to pay in each Tax Year (as
hereinafter defined), as additional rental, Tenant's Pro Rata Share of all real
estate taxes, assessments, and any and all other ad valorem taxes, charges, and
assessments (including without limitation, general and special assessments no
matter how designated), of every kind and nature, foreseen as well as
unforeseen, extraordinary as well as ordinary, payable by Landlord with respect
to the Shopping Center Land and all improvements thereon. These taxes shall
include, but are not limited to, any and all taxes on real estate rental
receipts or gross receipts of Landlord or any other tax now or at any time after
commencement of the Lease Term imposed upon owners of real estate as such.
Tenant's share shall include the cost, including attorneys', tax consultants'
and appraisal fees, of any negotiation, contest or appeal pursued by Landlord in
an effort to reduce or limit the increase of any present or future tax or
assessment on which any tax or other imposition provided for in this Section is
based.
The additional rental required hereunder as Tenant's Pro Rata Share of
taxes shall be paid by Tenant in equal monthly installments in such amounts as
are reasonably estimated and billed for each Tax Year (as defined below) by
Landlord at the commencement of the Lease Term and at the beginning of each
successive Tax Year during the Lease Term, each such installment being due with
Tenant's monthly payments of Basic Annual Rental.
Within sixty (60) days after Landlord's receipt of tax bills for each Tax
Year, or such reasonable time thereafter, Landlord will notify Tenant of:
(a) the amount of taxes and assessments on the Shopping Center Land and all
improvements thereon as specified above, and
(b) the amount of Tenant's Pro Rata Share thereof. When applicable,
Tenant's Pro Rata Share paid or payable for each Tax Year shall be adjusted
between Landlord and Tenant; both Landlord and Tenant hereby agree that Tenant
shall pay to Landlord or Landlord shall credit to Tenant's account (or, if such
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adjustment is at the end of the Lease Term, pay to Tenant), as the case may be,
within thirty (30) days after notice of such amount necessary to effect such
adjustment, but without interest on such amount.
For the Tax Year in which the Lease Term commences or terminates, the
provisions of this Section 10 shall apply, but Tenant's liability for Tenant's
Pro Rata Share of any taxes for such year shall be subject to a pro rata
adjustment based upon the number of days of such Tax Year falling within the
Lease Term.
"Tax Year" means each twelve (12) month period established as the Tax Year
for the applicable taxes by the taxing authorities having jurisdiction over the
Shopping Center Land.
Tenant shall also pay to the appropriate agency all sales and excise taxes
levied, imposed or assessed by any taxing authority upon any rentals payable
hereunder. Tenant shall also be solely responsible for and pay within the time
provided by law all taxes imposed on its personal property, fixtures, equipment
and intangible property, including, but not limited to, inventory, furniture,
trade fixtures, apparatus, and equipment.
Landlord's and Tenant's obligations under this Section 10 shall survive the
expiration or earlier termination of the Lease Term of this Lease.
COVENANT OF QUIET POSSESSION
SECTION 11.
Landlord covenants that it has full right, power and authority to make this
Lease, and that Tenant or any permitted assignee or permitted subtenant of
Tenant shall peaceably and quietly have, hold and enjoy the Demised Premises
during the Lease Term, provided Tenant complies with its obligations herein
contained.
USE OF THE DEMISED PREMISES
SECTION 12.
The Demised Premises shall, during the Lease Term, be used and occupied
only for the purposes, and operated under the trade name, specifically set forth
in the Lease in Sections 1.E. and 1.F. and not otherwise. Tenant shall keep the
Demised Premises open for business continuously during the Lease Term between
the hours of 10:00 A.M. and 9:00 P.M. at least six (6) days per week (Monday
through Saturday) and, 12:00 PM and 5:00 P.M. on Sunday, or such different and
additional hours and days of the week as shall be prescribed by Landlord; except
that Tenant shall not be required to open on Thanksgiving Day, Christmas Day or
New Year's Day. In addition, upon ten (10) days prior written request to
Landlord by Tenant, Tenant shall inform Landlord of its desire to open the
Demised Premises for business during hours other than those specified herein and
during the period or periods Tenant does so, Tenant agrees to pay to Landlord
the additional cost and expense reasonably estimated by Landlord to have been
incurred by Landlord wholly or partially in connection therewith, including but
not limited to utilities and services furnished to the Demised Premises or any
part of the Common Areas or both.
RADIUS CLAUSE
SECTION 13.
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OPERATION BY TENANT
SECTION 14.
Tenant shall, before the Rent Commencement Date of this Lease, comply in
all respects with the provisions of Exhibit C.
Landlord reserves the right to adopt reasonable rules and regulations of
Landlord which Landlord in its sole discretion shall deem necessary or desirable
from time to time for the general and proper operation of the Shopping Center in
accordance with good standards for the operation of a shopping center, which
rules and regulations Landlord agrees to uniformly and fairly enforce against
all non major store tenants in the Shopping Center. Notice of such rules and
regulations and of any changes thereto shall be given to the Tenant and Tenant
agrees to comply with and observe all such rules and regulations. The rules and
regulations, if any, in effect as of the date of execution of this Lease, are
attached hereto as Exhibit G" and made a part of this Lease. This is a general
listing of rules and regulations and activities which are in violation of
Shopping Center policy. Rules of conduct apply to all employees, tenants,
contractors, vendors, visitors, and patrons.
PARKING INDEX
SECTION 15.
Subject to the provisions of Section 30 (Eminent Domain), and reasonable
temporary interruptions for repair, restoration, modification or replacement of
any part of the Shopping Center, Landlord covenants and agrees that at all times
the Shopping Center shall have available for parking of its Tenants and their
customers and invitees within the Shopping Center reasonable facilities for the
parking of at least four (4.0) cars for each one thousand (1,000) square feet of
gross floor area of the Shopping Center. In case of expansion or enlargement of
the Shopping Center, or the construction of additional buildings, the
requirements of this Section 15 shall apply to the Shopping Center as so
enlarged or expanded.
COMMON AREAS
SECTION 16.
A. Tenant, its employees and customers shall have the non-exclusive right
throughout the Lease Term to use in common with others all facilities furnished
in the Shopping Center (herein referred to in this Lease as "Common Areas")
which are designated for the general use in common of occupants of the Shopping
Center, which facilities shall include but are not limited to parking areas,
streets, sidewalks, walkways, canopies, roadways, loading platforms, bus stops,
restrooms, light facilities, ramps, landscaped areas, and other similar
facilities. Such Common Areas shall at all times be subject to the control and
management of Landlord or such other parties as Landlord may decide upon.
Landlord shall have the right in its sole discretion, from time to time, to add
kiosks, to change the area, level, location, and arrangement of such parking
areas, and any other facilities referred to as the Common Areas; to permit other
parties outside the Shopping Center, and their employees, invitees, or licensees
to use the Common Areas; to enforce parking charges (by operation of meters or
otherwise) with appropriate provisions for free parking ticket validating; to
close temporarily all or any portion of said parking areas or other common
facilities to such an extent as may, in the opinion of Landlord, be necessary to
prevent a dedication thereof or the accrual of any rights therein to the public
or to individuals; and to do such things, and make such rules and regulations as
in Landlord's sole discretion, may be appropriate and in the best interests of
the Shopping Center. Except as herein specifically provided, Tenant shall have
no right or interest in the Common Areas. If such Common Areas shall be so
changed or diminished then Landlord shall not be subject to any liability, and
Tenant shall not be entitled to any compensation or reduction or abatement of
rent and any such renovation or reduction of the Common Areas shall not be
deemed constructive or actual eviction of Tenant.
B. Tenant and its employees shall park their cars only in those portions of
the parking area or at such other places as designated for that purpose by
Landlord from time to time. Tenant agrees that from time to time, upon written
notice from Landlord, Tenant will, within five (5) days after request therefor,
furnish Landlord with the state automobile license tag numbers assigned to
Tenant's cars, and the cars of all Tenant's employees, and Tenant shall
thereafter notify Landlord of changes of such license tag numbers and such new
numbers within five (5) days after such changes occur.
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If Tenant or its employees park their cars in any area other than in the
designated parking areas, after five (5) days notice from Landlord to Tenant,
Landlord shall have the right to charge Tenant, and Tenant agrees to pay as
additional rental, Ten Dollars and 00/100 ($10.00) per day per car parked in any
parking area other than those so designated by Landlord. Landlord also maintains
the right to have any of Tenant's or Tenant employee's cars that are not parked
in the proper area towed away at the car owner's sole expense.
EXPENSE OF COMMON AREAS
SECTION 17.
A. Landlord will operate and maintain or will cause to be operated and
maintained the Common Areas. "Landlord's Operating Costs" shall mean the cost
and expense of operating, maintaining, repairing and replacing the Common Areas
in a manner deemed by Landlord to be reasonable, appropriate and in the best
interest of the Shopping Center, including, without limitation, and by example
only, all costs and expenses of maintaining, repairing, lighting, signing,
cleaning, exterminating, painting, striping, and removing of snow, ice, trash,
and debris; purchasing, inspecting, and depreciating machinery, equipment,
fixtures, and personal property used in the operation and maintenance of the
Common Areas and other charges incurred in connection with such equipment;
replacing paving, curbs, walkways, landscaping, drainage, pipes, ducts,
conduits, and similar items, and lighting facilities; pro-rata personnel costs
(salary and other compensation, taxes and benefits) including travel for direct
supervision of maintenance and upkeep activities; planting, replanting, and
replacing flowers, shrubbery and planters; providing water to the Common Areas;
providing other services, if furnished by Landlord for non-exclusive use of all
tenants; and administering the above enumerated services in an amount equal to
fifteen (15%) percent of the total cost of operating and maintaining the Common
Areas.
B. For each Lease Year during the Lease Term, Tenant will pay to Landlord,
as additional rental, without deduction or set-off, Tenant's Pro Rata Share of
Landlord's Operating Costs.
C. The Common Area Maintenance Charge set forth in Section 1.K. shall be
paid by Tenant in monthly installments in such amounts as are reasonably
estimated and billed by Landlord at the beginning of each calendar year, each
installment being due on the first day of each calendar month. Within one
hundred twenty (120) days (or such additional time thereafter as is reasonable
under the circumstances), after the end of each such calendar year, Landlord
shall deliver to Tenant a statement of Landlord's Operating Costs for such
calendar year, and the monthly installments paid or payable shall be adjusted
between Landlord and Tenant; both Landlord and Tenant hereby agree that Tenant
shall pay to Landlord or Landlord shall credit to Tenant's account, or if such
adjustment is at the end of the Lease Term, pay to or collect from Tenant, as
the case may be, within thirty (30) days of receipt of such statement, such
amounts as may be necessary to effect adjustment to Tenant's Pro Rata Share for
such calendar year. Upon reasonable notice, Landlord shall make available for
Tenant's inspection, during Landlord's normal business hours, Landlord's records
relating to Landlord's Operating Costs. Failure of Landlord to provide the
statement called for hereunder within the time prescribed shall not relieve
Tenant from its obligations hereunder.
SECURITY
SECTION 18.
Landlord may, from time to time and to the extent it deems appropriate,
arrange for security services in the Common Areas or manned traffic control for
special events at the Shopping Center. Notwithstanding any other provision of
this Lease, Landlord shall not be liable for any loss or damages suffered by
Tenant or anyone else for failure to supply such security services or manned
traffic control and Landlord shall not assume any obligation to ensure the
safety of tenants or any occupants of the Shopping Center by providing such
security services or traffic control. If any such security services are
supplied, then Landlord shall not be liable for loss or damage except as caused
by Landlord's negligence or willful misconduct no matter how caused. It is
agreed that by Landlord's supplying such security services, Tenant shall not be
relieved of its duty to maintain security within the Demised Premises. If any
such security services or manned traffic control are provided, the Tenant shall
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pay each month, in arrears, Tenant's Pro Rata Share of the cost thereof which
shall include but not be limited to, the cost of contracting for such service or
services, uniforms, equipment, employment taxes, alarm systems, other reasonable
expenses, and reasonable administration charges and insurance. Landlord may
elect to charge the cost of security to Landlord's Operating Costs, and if so,
Tenant's Pro Rata Share of such cost will be paid accordingly as a part of
Tenant's Common Area Maintenance Charge.
UTILITIES, ELECTRICITY, AND OTHERS
SECTION 19.
A. Tenant shall be solely responsible for all charges for gas, water,
electricity, telephone, and other utility services and sewer charges used,
rendered, supplied, or imposed upon the Demised Premises, regardless of whether
a public utility or Landlord as provided below is the supplier of the same, and
Tenant shall indemnify Landlord and save Landlord harmless against any liability
or charges on account thereof.
B. In the event Landlord elects to channel Tenant's water through the
Landlord's master meter, Tenant agrees to pay Landlord a pro rata share based
upon Landlord's estimate of Tenant's average annual water usage, and Landlord
and Tenant shall reconcile and adjust such payments based on Landlord's actual
bills on a biannual basis. If Tenant disputes Landlord's estimate on reasonable
grounds and the amount in dispute is more than Seventy-Five Dollars and 00/100
($75.00) for any Lease Year, then the determination of the supplier of such
water shall be binding upon the parties, and appropriate refund or additional
payment shall be made as applicable.
C. Landlord may, at any time during the Lease Term, elect to furnish,
install a submeter, and bill Tenant for electrical energy for the Demised
Premises. During the period Landlord furnishes such electrical energy, it will
be furnished in accordance with Tenant's requirements, with measurement of or
metering for Tenant's consumption of electricity.
D. Tenant agrees that it will not install any equipment which will exceed
or overload the capacity of any utility facilities, whether provided by Tenant
or Landlord, and that, if any equipment installed by Tenant shall require
additional utility facilities, the same shall be furnished and installed at
Tenant's expense in accordance with plans and specifications to be approved in
writing by Landlord.
E. Landlord shall under no circumstances be liable to Tenant in damages or
otherwise for any interruption or cessation in the service of water,
electricity, or other utilities and services unless due to the negligence or
willful misconduct of Landlord. No such interruption or cessation shall relieve
Tenant from the performance of any of Tenant's covenants, conditions and
agreements under this Lease. There shall be no constructive eviction, and the
Lease Term shall not be affected by any interruptions in the services of water,
electrical or other utilities and services.
TENANT'S IMPROVEMENTS, FIXTURES, AND MECHANICS' LIENS
SECTION 20.
A. Tenant shall conduct its initial construction activities to complete
Tenant's Work in accordance with Exhibit C and with Subsections C, D, E, and F
below.
B. Following Tenant's initial construction activities, Tenant may make
alterations, additions, or improvements to the Demised Premises in accordance
with Subsections C, D, E and F below, provided that Tenant shall not make any
such alterations to the structural elements, the exterior signs, the mechanical,
electrical, plumbing or sprinkler systems, the storefront, or the demising wall
(except for decorative changes to the interior face thereof). Tenant shall give
Landlord thirty (30) days notice of its intention to make any permitted
alterations and, upon Landlord's request, Tenant shall furnish plans and
specifications for such permitted alterations.
C. All construction work done by Tenant within the Demised Premises shall
be performed in a good workmanlike manner, in compliance with all governmental
and insurance company requirements, and at such times and in such manner as not
to unreasonably interfere with the construction or renovation activities of
Landlord or others in the Shopping Center. Tenant shall, at its expense, remove
from the Demised Premises and from the Shopping Center, all trash and debris
created by Tenant.
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D. No construction work done by Tenant is solicited by or provided at the
instance of Landlord or any person acting on behalf of Landlord, and Tenant
shall notify all laborers, materialmen, architects, contractors and
subcontractors that all services and materials are provided only at the instance
of Tenant and not Landlord. In the event any mechanics', laborers' or
materialmen's or other lien shall be filed against the Demised Premises or any
part of the Shopping Center Land or any improvements thereon by reason of work,
labor, services or materials performed or furnished to or at the instance of
Tenant or to anyone holding the Demised Premises through or under Tenant, Tenant
shall forthwith cause the same to be discharged or bonded to the satisfaction of
the Clerk of the Superior Court of the County in which the Demised Premises are
located in accordance with the laws of the State of Georgia with security
satisfactory to Landlord. If Tenant shall fail to cause such lien forthwith to
be so discharged or bonded after being notified of the filing thereof, then, in
addition to any other right or remedy of Landlord, Landlord may discharge the
same by paying the amount claimed to be due, and the amount so paid by Landlord
shall bear interest at the rate set forth in Section 51 and all costs and
expenses, including all reasonable and actual attorneys' fees incurred by
Landlord in procuring the discharge of such lien, shall be due and payable by
Tenant to Landlord as additional rental with the next installment of Basic
Annual Rental, or may, at Landlord's election, be subtracted from any sums owing
to Tenant.
E. All unattached movable trade fixtures and trade apparatus owned and
installed by Tenant in the Demised Premises shall remain the property of Tenant
and shall be removable at any time up to the expiration or earlier termination
of the Lease Term, provided that Tenant shall not be in default of any terms or
covenants of this Lease, and provided further that Tenant shall simultaneously
repair any damage to the Demised Premises caused by the installation or removal
of same. If Tenant is in default, Tenant shall not remove or permit the removal
of said property until all defaults have been cured. All fixtures installed by
Tenant shall be new or like new and of good quality.
F. Tenant's obligation to observe and perform any of the provisions of this
Section 20 shall survive the expiration or earlier termination of this Lease.
LANDLORD'S MAINTENANCE
SECTION 21.
A. Landlord will repair the roof, foundations, and exterior walls of the
Demised Premises and the utility lines outside the exterior walls of the
building of which the Demised Premises are a part, provided that in each case
Landlord shall have received prior written notice of the necessity of such
repairs from Tenant, and provided further that if any such repair is required by
reason of Tenant's failure to comply with any of Tenant's obligations in this
Lease or the negligence of Tenant or any of Tenant's agents, employees, or
invitees, or is the result of Tenant's Work or the installation of its equipment
and property, Tenant shall at its expense promptly make such repairs. If Tenant
fails to perform any of its obligations under Sections 21 or 22, Landlord may at
its option perform same and Tenant shall pay, with the next installment of Basic
Annual Rental, the cost thereof together with interest at the rate set forth in
Section 51 from the date of payment by Landlord. Landlord shall not be liable
for any damages resulting from its failure to make repairs unless such failure
continues beyond a reasonable time after receipt of written notice of the
necessity for such repairs from Tenant.
B. Except as hereinabove provided, Landlord shall have no obligation to
repair, maintain, alter, replace, or modify the Demised Premises or any part
thereof, or any plumbing, heating, which is not part of the central plant
system, electrical, air conditioning, which is not part of the central plant
system, or other mechanical equipment installed therein or serving same.
Landlord shall not be obligated to repair, replace, or maintain any windows,
doors, frames or supports therefor, plate glass or other glass. Tenant expressly
waives the benefits of any statute now or hereinafter in effect which would
otherwise afford Tenant the right to make repairs at Landlord's expense or to
terminate this Lease because of Landlord's failure to keep the Demised Premises
in good order, condition or repair.
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TENANT'S MAINTENANCE
SECTION 22.
A. Except as the contrary is provided in Section 21, Tenant covenants and
agrees to keep and maintain the Demised Premises and every part thereof in good
order, condition and repair, clean, sanitary and safe, and to perform at
Tenant's expense all such work as may be necessary to alter, modify, or replace
same (such work being hereinafter collectively referred to as "repairs"),
including, but not limited to, any improvements, fixtures, and equipment
thereto, therein, or above the Demised Premises installed by Tenant; the
exterior and interior portions of all doors, door locks, roll gates, windows,
glass, plumbing, and sewage facilities which are not Landlord's obligation;
fixtures,any and all heating and air conditioning equipment, which is not part
of the central plant system, interior and exterior mechanical equipment and
electrical equipment, interior walls, floors, and ceilings. All of such repairs
shall comply with applicable governmental and insurance company requirements and
shall be promptly accomplished, at Tenant's own expense and using materials and
labor of kind and quality equal to the original work. Tenant agrees to keep in
force a standard maintenance agreement on all heating and air conditioning
equipment and to provide a copy of said maintenance agreement to Landlord;
however, the Landlord has the option to purchase a maintenance contract on the
HVAC system and the Tenant will reimburse the Landlord the cost of that
maintenance contract on a monthly basis. All parts of the interior of the
Demised Premises shall be painted or otherwise decorated by Tenant as and when
reasonably necessary as determined and approved by Landlord, but at least every
five (5) years. Tenant will surrender the Demised Premises at the expiration or
earlier termination of this Lease in as good condition as when initially
completed by Tenant, excepting only deterioration caused by ordinary wear and
tear, and except as the contrary is provided in this Lease. All replacements and
modifications shall become the property of Landlord at the end of the Lease
Term.
B. If any repairs required to be made by Tenant hereunder are not begun
immediately and completed within ten (10) days, or in case of emergency if the
same are not begun immediately, then without limiting any other right to remedy
it that Landlord may have, Landlord may at Landlord's option make such repairs
without liability to Tenant for any loss or damage which may result to Tenant by
reason thereof; and Tenant shall immediately pay to Landlord, upon demand, as
additional rental hereunder, the cost of such repairs, plus interest from the
date of payment by Landlord until repaid by Tenant at the rate of interest
specified in Section 51. The performance by Landlord of repairs required to be
made by Tenant shall not constitute a waiver of Tenant's default in failing to
perform same. If any repairs required to be made by Tenant are begun immediately
upon the same becoming necessary, but cannot reasonably be completed within ten
(10) days, even though such repairs are prosecuted with due diligence, then
Tenant shall have an additional reasonable period of time to complete same, so
long as it continues to prosecute the completion of such repairs and provided it
keeps Landlord fully informed with reference thereto. All such work done by
Tenant within the Demised Premises shall be performed in a good workmanlike
manner using materials of at least equal quality to those previously used in the
Demised Premises to ensure compliance with all governmental requirements and
with all the terms of this Lease and at such times and in such manner as to
cause a minimum of interference with the transaction of business in the Shopping
Center.
ENTRY, INSPECTION, POSTING, AND DISPLAY
SECTION 23.
A. Landlord, and all persons authorized by Landlord, may enter the Demised
Premises at all reasonable times to inspect same, to perform any work on the
Demised Premises or in connection with work for the Shopping Center, to show
same to prospective lenders, purchasers or tenants, and to complete all other
reasonable purposes desired by Landlord. Nothing herein shall imply any duty on
the Landlord to do any work which Landlord is not specifically required to
perform under this Lease or to perform any work which Tenant may be required to
perform.
B. Landlord hereby reserves such licenses and easements in and over the
Demised Premises or any portion or portions thereof as shall be reasonably
appropriate for the installation or maintenance of mains, conduits, pipes, or
other facilities which may be located in the ceiling, demising walls, or corners
of the Demised Premises and are needed to serve the Shopping Center or any part
thereof.
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APPLICABLE LAWS
SECTION 24.
Tenant shall, during the Lease Term, at Tenant's sole cost and expense,
promptly comply with any and all present and future laws, ordinances, rules,
regulations, directives and standards of all federal, state, county and
municipal governments and all departments and agencies thereof having
jurisdiction over the Demised Premises, including but not limited to, the
installation of any sprinkler system and the making of all changes to the
Demised Premises which now or hereafter may be required in order to comply with
the foregoing. Tenant covenants and agrees to indemnify and save Landlord
harmless from any penalties, damages, and charges imposed for any violation of
any of the covenants herein expressed, whether occasioned by Tenant or any
person on the Demised Premises. If Tenant fails to comply with any of the
foregoing, and as the result thereof or otherwise the premiums for any insurance
which the Landlord may then or thereafter have covering the Shopping Center or
any part thereof be increased, then, without limiting Landlord's other remedies
or rights in regard to such failure, Tenant shall pay to Landlord on demand all
such increases in any such insurance premiums on the Shopping Center, or such
part thereof as Landlord may reasonably require.
Tenant has determined in advance of Tenant's execution of this Lease the
compliance of each proposed aspect of Tenant's operations permitted under this
Lease with all applicable zoning laws and other laws, restrictions and
regulations. Tenant shall have no claim against Landlord for any damages, and
Tenant shall not have the right to terminate this Lease should Tenant's use and
occupancy of the Demised Premises for the purposes set forth in this Lease be
prohibited or substantially impaired by reason of any law, ordinance, or
regulation of federal, state, county or municipal governments, or by reason of
any act of any legal or governmental or other public authority.
INDEMNIFICATION
SECTION 25.
A. Tenant agrees to indemnify Landlord, its agents, officers and employees
and all present and future Major Stores from all suits, actions, damages,
liability and expense in connection with the loss of life, bodily or personal
injury or property damage (and each and all of them) arising from or out of any
occurrence in, upon, or from the Demised Premises or resulting from or
attributable to the occupancy or use of said Demised Premises or any part
thereof by Tenant, its agents, officers, employees, contractors, servants,
invitees, licensees or concessionaires or occasioned wholly or in part by any
act or omission of Tenant, its agents, officers, employees, contractors,
servants, invitees, licensees or concessionaires. Tenant shall store its
property in, and shall occupy, the Demised Premises at its own risk, and
releases Landlord, to the fullest extent permitted by law, from all claims of
every kind resulting in loss of life, personal or bodily injury, or property
damage, no matter when or where or to whom same occurs without being limited by
any other provision of this Lease, excepting therefrom Landlord's sole
negligence or willful misconduct.
Landlord shall not be responsible or liable to Tenant or to any other
person or persons for any loss or damage to either the person or property of
Tenant or to any other person or persons, including other tenants or occupants
of the Shopping Center, unless such loss or damage is due to Landlord's
negligence or willful misconduct. Landlord shall not be responsible for any
injury, loss, or damage to any person or resulting from bursting, breakage, or
leakage, from steam, snow, or ice, from running, backing up, seeping, or
overflowing water or sewage in any part of said Demised Premises or the Shopping
Center or for any injury or damage caused by or resulting from fire, vandalism,
acts of God, or the elements, or for any injury or damage caused by or resulting
from any defect or negligence in the occupancy, construction, operation, or use
of the Demised Premises or any machinery, apparatus or equipment by anyone.
Landlord shall not be liable to Tenant for any damages arising from any act or
neglect of any other tenant in the Shopping Center.
B. Landlord shall at all times during the Lease Term indemnify Tenant from
suits, actions, damages, liability, and expense in connection with loss of life,
bodily or personal injury or property damage arising from or out of any
occurrence in or upon the Common Areas of the Shopping Center, when not a result
of any act or omission of Tenant, or any of its agents, employees, officers,
contractors, servants, invitees, licensees or concessionaires.
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TENANT'S INSURANCE
SECTION 26.
A. Tenant shall at all times during the Lease Term maintain in full force
and effect the following insurance covering the Demised Premises:
(1) Commercial general liability insurance for any occurrence
resulting in bodily or personal injury to or the death of any person or more
than one person, or for damage to property, and consequential damages arising
therefrom, in the amount of at least Three Million and 00/100 Dollars
($3,000,000.00) combined single limit per occurrence/aggregate. Said insurance
shall be written on an "occurrence" basis and not on a "claims made" basis.
Landlord shall have the right, exercisable by giving written notice thereof to
Tenant, to require Tenant to increase such limit if, in Landlord's reasonable
judgment, the amount thereof is insufficient to protect the Landlord from
judgments which might result from such claims, demands or actions. Tenant shall
use its good faith efforts to cause its liability insurer to insure Landlord,
Landlord's agents, employees, partners, officers, and directors ("Landlord's
Protected Parties") as "named insureds," and if Tenant is unable to do so,
Tenant shall nevertheless cause Landlord's Protected Parties to be insured as
"additional insureds." Tenant shall cause its liability insurance to include
contractual liability coverage fully covering the indemnity set forth in Section
25A.
(2) Workers' Compensation Insurance with Employers' Liability limits
of $100,000.00 Each Accident, $100,000.00 Disease-Each Employee, and $500,000.00
Disease-Policy Limit.
(3) Insurance covering all trade fixtures, signs, plate glass, floor
covering, decorative items, furniture, furnishings, machinery, equipment and
merchandise in the Demised Premises to the extent of one hundred percent (100%)
of the replacement cost under a Standard Fire and Extended Coverage Policy and
covering all other risks of direct physical loss as insured against under
Special Form ("all risk" coverage) with endorsement for business interruption
with extended indemnity for twelve (12) months, and coverage for sprinkler
leakage liability.
B. All of the aforesaid insurance shall be in responsible companies. The
insurer and the form, substance and amount (where not stated above) shall be
satisfactory from time to time to Landlord and any mortgagee of Landlord, and
shall unconditionally provide that it is not subject to cancellation or
non-renewal, except after at least thirty (30) days' prior written notice to
Landlord and any mortgagee of Landlord. Originals of Tenant's insurance policies
(or certificates thereof satisfactory to Landlord, together with satisfactory
evidence of payment of the premiums thereon), shall be deposited with Landlord
prior to Tenant's possession of the Demised Premises and renewals thereof not
less than thirty (30) days prior to the end of the terms of such coverage.
C. If at any time during the term of this Lease, Tenant owns or rents more
than one location, the policy shall contain an endorsement to the effect that
the aggregate limit in the policy shall apply separately to each location owned
or rented by Tenant.
LANDLORD'S INSURANCE - TENANT'S REIMBURSEMENT
SECTION 27.
A. Subject to reimbursement as hereinafter provided, Landlord shall pay for
and maintain in full force and effect the following insurance covering the
Shopping Center in standard form generally used in the State of Georgia, with
insurance companies authorized to do business in such State:
(1) Commercial general liability insurance for any occurrence
resulting in bodily or personal injury to or the death of any person or more
than one person, or for damage to property, and consequential damages arising
therefrom in the amount of at least Three Million and 00/100 Dollars
($3,000,000.00) combined single limit per occurrence/aggregate. Said insurance
shall be written on an "occurrence basis" and not on a "claims made" basis.
(2) Insurance covering the building of which the Demised Premises
constitute a part, excluding foundations to the extent of not less than eighty
percent (80%) of the replacement cost of said building with an agreed amount
endorsement, including Tenant's Work required by Exhibit C, against all
casualties provided by the Standard Fire and Extended Coverage Policy and
covering all other risks of direct physical loss as insured against under
Special Form ("all risks" coverage) Landlord shall be named as the insured and
all proceeds
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of insurance shall be payable to Landlord. Said insurance shall contain an
endorsement waiving the insurer's right of subrogation against any Tenant,
provided that such waiver of the right of subrogation shall not be operative in
any case where the effect thereof is to invalidate such insurance coverage or to
increase the cost thereof (except that Tenant shall have the right, within
thirty (30) days following written notice, to pay such increased cost, thereby
keeping such waiver in full force and effect).
B. If at any time during the term of this Lease Landlord owns more than one
location, the policy shall contain an endorsement to the effect that the
aggregate limit in the policy shall apply separately to each location owned by
Landlord. In order to assist, but not be binding upon, Landlord in determining
the amount of insurance which it will obtain for Tenant's Work, Tenant shall
furnish to Landlord, upon the completion of its work, and from time to time
thereafter, such evidence as Landlord may reasonably require as to the cost or
value thereof exclusive of trade fixtures, signs, plate glass, floor covering,
decorative items, furniture, machinery, equipment and merchandise.
C. Tenant agrees to pay to Landlord, as additional rental, Tenant's Pro
Rata Share of the cost to Landlord of insurance obtained by Landlord for the
Shopping Center, including, but not limited to, that required by this Section
27. Such share shall be prorated for any partial year. Payment for such share
shall be made in equal monthly installments in advance on the first day of each
month. Landlord may elect to charge the cost of insurance to Landlord's
Operating Costs and, if so, Tenant's Pro Rata Share will be billed accordingly
as a part of Tenant's Common Area Maintenance Charge.
WAIVER OF SUBROGATION
SECTION 28.
Landlord and Tenant hereby grant to each other on behalf of any insurer
providing the insurance to either of them described in Sections 26 and 27, a
waiver of any right of subrogation which any such insurer may acquire against
the other or against the officers, directors, employees, agents, partners and
representatives of the other by virtue of payment of any loss under such
insurance. Tenant, on behalf of its insurance companies, waives any right of
subrogation which said insurer or insurers may have against any Major Store
which is or becomes an owner and/or occupant of any portion or portions of the
Shopping Center.
FIRE OR OTHER CASUALTY
SECTION 29.
A. Unless this Lease is terminated as provided in Section 29.B., if the
Demised Premises or any of the buildings of the Shopping Center shall be damaged
or destroyed by any casualty covered by the insurance maintained or required to
be maintained by Landlord pursuant to Section 27, then Landlord shall, when paid
and to the extent of available insurance proceeds, cause the same to be restored
substantially to the state originally constructed, and Tenant shall do likewise
with respect to those items covered by the insurance maintained or required to
be maintained by Tenant pursuant to Section 26.A., all within a reasonable time
after such damage or destruction.
B. If the Demised Premises or any of the buildings comprising the Shopping
Center shall be damaged or destroyed by a casualty and Landlord's architect
shall certify that the extent of such damage or destruction is one-fifth (1/5)
or more of the replacement value thereof immediately prior to the occurrence of
such damage or destruction, or if insurance proceeds are not paid to Landlord,
Landlord shall have the option to terminate this Lease by giving Tenant notice
in writing any time within ninety (90) days after the occurrence of such
casualty.
C. In the event of any termination of this Lease under the provision of
Section 29.B., this Lease shall terminate at the end of the calendar month in
which the notice of termination is given and Basic Annual Rental and other
charges shall be prorated as of the date of such casualty.
D. If the Demised Premises are damaged or destroyed the Basic Annual Rental
and other charges, shall be abated in such proportion as the part of the Demised
Premises rendered untenantable bears to the total Demised Premises from the date
of any casualty until the Demised Premises are repaired or restored. Tenant
shall continue to operate its business
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in the Demised Premises during such period to the extent reasonably practicable
from the standpoint of reasonable business management. Except for the abatement
of the Basic Annual Rental and other charges as foresaid, Tenant shall not be
entitled to any compensation or damage for loss in the use of the whole or any
part of the Demised Premises, inconvenience, or annoyance by any such damage,
destruction, repair, or restoration.
EMINENT DOMAIN
SECTION 30.
A. In the event that the whole or any part of the Demised Premises, or ten
percent (10%) or more of the Floor Area of the Shopping Center, or more than
twenty percent (20%) of the parking area of the Shopping Center shall be taken
under the power of Eminent Domain (as defined below), this Lease shall thereupon
terminate as of the date possession of said portion is taken if either Tenant or
Landlord notifies the other party of its cancellation of the Lease within thirty
(30) days after such taking by Eminent Domain; provided, however, Tenant may not
cancel this Lease for any such taking of the parking area unless the Landlord
notifies Tenant within thirty (30) days after such taking that Landlord will not
provide additional parking either by construction of a parking deck or decks
within the Shopping Center or by making available parking (ground-level or
parking decks or both) within the Shopping Center or in an area or areas
adjacent thereto, or one or more of the above alternative actions which together
with the parking spaces not so taken will, when the same has been completed,
provide at least eighty percent (80%) of the parking spaces which were provided
immediately prior to such taking by Eminent Domain. In the event of any taking
under the power of Eminent Domain which does not permit a cancellation of this
Lease, or if same permits such cancellation but such right of cancellation be
not effectively exercised, then the provisions of this Lease shall remain in
full force and effect, without reduction in Basic Annual Rental and other
charges to be paid by Tenant under this Lease.
B. In the event the Demised Premises or any part thereof, or any other part
of the Shopping Center, shall be taken or condemned either permanently or
temporarily by any right of Eminent Domain, the entire compensation award,
including but not limited to damages for leasehold and reversion, shall belong
to the Landlord without any deduction therefrom for any present or future estate
of Tenant, and Tenant hereby expressly waives any claim and assigns to Landlord
all of Tenant's right, title and interest to any such award. If this Lease is
terminated due to any such taking of the Demised Premises or any part thereof,
Tenant shall, however, be entitled to claim, prove and receive in such
condemnation proceedings an award as may be allowed for relocation costs,
removable fixtures and equipment installed by Tenant, but only to the extent
that the same shall not reduce Landlord's award and only if such award shall be
in addition to the award for the Shopping Center Land and the Demised Premises.
C. If this Lease is terminated as provided in this Section 30, all rentals
and other charges shall be paid up to the date that possession is taken by the
public authority, and Landlord shall make an equitable refund of any rentals and
other charges (but excluding Percentage Rental) paid by Tenant in advance and
not yet earned.
D. A voluntary sale by Landlord to any public or quasi-public body, agency
or person, corporate or otherwise, having the power of eminent domain either
under threat of condemnation, or while condemnation proceedings are pending,
shall be deemed to be a taking by Eminent Domain for the purposes of this Lease.
FINANCIAL INFORMATION OF TENANT
SECTION 31.
Tenant shall at any time and from time to time at reasonable intervals
during the Lease Term, within fifteen (15) days of written request by Landlord,
deliver to Landlord such financial information concerning Tenant and Tenant's
business operations (and the Guarantor of this Lease, if the Lease is
guaranteed) as may be reasonably requested by any Mortgagee or prospective
Mortgagee or purchaser of the Shopping Center or any portion thereof. If Tenant
fails to provide such information promptly, then, without limiting any other
remedy which Landlord may have for such failure, Landlord may thereupon
terminate this Lease on not less than ten (10) days' written notice to Tenant.
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ASSIGNMENT AND SUBLETTING
SECTION 32.
Tenant shall not assign, mortgage or encumber this Lease, in whole or in
part, or sublet all or any part of the Demised Premises, or allow the use or
possession of all or any part of the Demised Premises by any licensee,
concessionaire or other entity, or permit the transfer of the effective control
or ownership of Tenant's business operations to persons other than those
presently in control thereof (except by devise or intestate succession or gifts
to family members), without the prior written consent of Landlord, which consent
shall be in Landlord's sole discretion without adhering to a standard of
reasonableness. Notwithstanding any assignment or sublease to which Landlord
consents, Tenant shall remain fully liable and shall not be released from
performing any of the terms of this Lease. Tenant shall pay to Landlord a fee in
the amount of $500.00 in advance for Landlord's expense in considering any
proposed assignment or subletting. The consent by Landlord to any assignment or
subletting shall not constitute a waiver of the necessity for such consent to
any subsequent assignment or subletting. This prohibition against assigning or
subletting shall be construed to include a prohibition against any assignment or
subletting by operation of law. If this Lease is assigned or if the Demised
Premises or any part thereof is occupied by anybody other than Tenant, Landlord
may collect rent from the assignee or occupant and apply the net amount
collected to the rentals herein required, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of this provision or the
acceptance of the assignee, subtenant or occupant as tenant, or as a release of
Tenant from the further performance by Tenant of the provisions on its part to
be observed or performed herein.
OWNERSHIP OF CERTAIN PROPERTY
SECTION 33.
Upon the expiration or earlier termination of this Lease, Tenant shall
surrender to Landlord the Demised Premises in good condition and repair except
for ordinary wear and tear and for damage from fire or other casualty required
to be insured by Landlord. Landlord and Tenant acknowledge that Landlord shall
have the right to retain (i) all personal property located on the Demised
Premises at the commencement of the Term, including any replacements of or
improvements to such property made by Tenant, including, without limitation, all
heating and air conditioning equipment, apparatus, fixtures (except signs,
unattached movable trade fixtures and furniture installed by Tenant), and (ii)
certain personal property placed or to be placed on the Demised Premises by
Tenant which is described on Exhibit H attached hereto ("Landlord's Property").
Tenant shall not remove any alterations, improvements, additions, machinery or
equipment which may be made or installed from time to time by either party
hereto, in, upon or about the Demised Premises or any of Landlord's Property
when it vacates the Demised Premises, and title to Landlord's Property shall be
vested solely in Landlord without any payment to Tenant. Tenant hereby grants to
Landlord a lien and a security interest in all goods, inventory, equipment,
trade fixtures, and all personal property belonging to Tenant that are or may be
placed on the Demised Premises during the Term and all proceeds from such
property. This security interest shall secure all amounts to be paid by Tenant
to Landlord under this Lease, including all costs of collection and other costs,
and any other indebtedness Tenant owes to Landlord. Upon Landlord's request,
Tenant agrees to sign a financing statement or security agreement in order to
perfect this security interest. This lien shall be in addition to any Landlord's
lien provided by law which may now or at any time hereafter exist.
HOLDOVER BY TENANT
SECTION 34.
If Landlord and Tenant have not reached a written agreement allowing Tenant
to hold over at the expiration of the Lease Term, during any such period Tenant
shall be a tenant at sufferance at one and one-half the Basic Annual Rental
payable hereunder immediately prior to the expiration of the Lease Term.
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FORCE MAJEURE
SECTION 35.
Landlord and Tenant shall each be excused for the period of any delay and
shall not be deemed in default with respect to the performance of any of the
terms, covenants and conditions of this Lease (except for the payment of rental)
when prevented from so doing by cause or causes beyond Landlord's or Tenant's
control, which shall include, without limitation, all labor disputes, civil
commotion, governmental regulations or controls, fire or other casualty,
inability to obtain any material or services, provided such material or services
are timely ordered, acts of God, or any other causes, whether similar or
dissimilar to the foregoing, not within the reasonable control of the Landlord
or the Tenant.
ADDITIONAL CONSTRUCTION
SECTION 36.
Subject to the provisions of Section 15 of this Lease, Landlord hereby
reserves the right at any time, and from time to time, to make alterations or
improvements, and to build additional buildings and stories on the Shopping
Center or on land adjoining the same or within the Common Areas, including,
without limitation, the construction or addition of multiple story buildings,
kiosks, and double-deck or elevated parking facilities. Landlord also reserves
the right to permit others from time to time to so construct and to improve the
Shopping Center as described above, such construction to include additional
stores on any such building or buildings adjoining same.
BANKRUPTCY
SECTION 37.
During the Lease Term, in the event of a filing or any proceeding by or
against Tenant for the adjudication of Tenant as a bankrupt debtor or for any
other relief under the bankruptcy or insolvency laws of the United States (Title
11 of the United States Bankruptcy Code, the "Bankruptcy Code"), Landlord may
exercise any and all rights available to landlords under the Bankruptcy Code.
Tenant acknowledges that this Lease is a lease of non-residential real property
which has been developed or will be developed as a shopping center. The Trustee
shall have the right to assume Tenant's rights and obligations under this Lease
only if the Trustee promptly cures or provides adequate assurance that the
Trustee will promptly cure any default under the Lease, compensates or provides
adequate assurance that the Trustee will promptly compensate Landlord for any
actual pecuniary loss incurred by Landlord as a result of Tenant's default under
this Lease, and provides adequate assurance of future performance under the
Lease. The word "promptly" shall mean that cure of defaults and compensation of
actual pecuniary loss will occur no later than sixty (60) days after the filing
of any motion or application to assume this Lease. The word "actual pecuniary
loss" shall include all unpaid Basic Annual Rental, Percentage Rental,
additional rental and other charges with interest at the rate set forth in
Section 51, all other monetary obligations of Tenant under this Lease, and all
reasonable and actual attorneys' fees and related costs of Landlord in
connection with any default of Tenant under the Lease and in connection with
Tenant's bankruptcy proceedings. Any person or entity to which this Lease is
assigned pursuant to the provisions of the Bankruptcy Code shall be deemed
without further act or deed to have assumed all of the obligations arising under
this Lease on or after the date of such assignment. Any such assignee shall,
upon demand of Landlord, forthwith execute and deliver to Landlord an
instrument, in form and substance acceptance to Landlord, confirming such
assumption. Such assignee shall use and operate the Demised Premises solely for
the Permitted Use hereunder. Any and all monies or the considerations payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord and shall not constitute property of Tenant or the estate
of Tenant within the meaning of the Bankruptcy Code. Notwithstanding anything
under this Lease to the contrary, all amounts payable by Tenant to or on behalf
of Landlord under this Lease, whether or not expressly denominated as rent,
shall constitute additional rental for the purposes of the Bankruptcy Code.
SUCCESSORS AND ASSIGNS
SECTION 38.
Subject to the provisions of Section 32, this Lease and the covenants and
conditions herein contained shall inure to the benefit of and be binding upon
Landlord, its successors and assigns, and shall be binding upon Tenant, its
successors and assigns, and shall inure to the benefit of Tenant and only such
assigns of Tenant to whom the assignment by Tenant has been consented to by
Landlord or to whom such consent is not specifically required of the Landlord by
the terms of this Lease.
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ATTORNMENT
SECTION 39.
In the event of the sale (by deed in lieu of foreclosure or otherwise) or
the assignment of Landlord's interest (except as security for a loan) in the
Shopping Center or the Shopping Center Land, in the event of any proceedings
brought for the foreclosure of or the exercise of the power of sale under any
Mortgage made by Landlord covering the Shopping Center or the Shopping Center
Land, or in the event of any sale or assignment of this Lease, Tenant shall
attorn to the purchaser and shall recognize such purchaser as Landlord under
this Lease, provided that the Tenant shall be entitled to continued possession
of the Demised Premises so long as Tenant complies with all terms and provisions
of this Lease and is not in default under the Lease. Tenant agrees to execute
and deliver an agreement evidencing same.
EVENTS OF DEFAULT
SECTION 40.
In addition to the other provisions of this Lease and not in limitation
thereof, the occurrence of any of the following shall constitute an event of
default hereunder:
(a) Failure of Tenant to pay Basic Annual Rental, Percentage Rental,
additional rental, or any other charges due under this Lease and such failure
continues for three (3) days after Tenant's receipt of written notice of such
failure from Landlord (provided, if Tenant fails to pay any such charges when
due two times within any Lease Year, and Landlord has given Tenant such 3-day
notice for Tenant's two failures, it shall be a default under the Lease for
Tenant thereafter in such Lease Year to fail to pay when due, and Landlord shall
not be required to give any notice of such failure).
(b) Failure of Tenant to observe and perform any other obligation in this
Lease and continued failure for ten (10) days after Landlord gives written
notice of such failure, unless the failure is of such a character (other than
one dealing with the conduct of Tenant's business in the Demised Premises),
reasonably requiring more than ten (10) days to correct in which event Tenant's
failure to commence the correction of such failure within ten (10) days and
vigorous prosecution thereof to completion shall constitute an event of default.
(c) Abandonment or vacation of the Demised Premises by Tenant.
(d) Failure of Tenant to continuously operate Tenant's business in the
Demised Premises.
(e) Filing of a petition by Tenant for adjudication as a bankrupt debtor or
insolvent, or for its reorganization or for the appointment of a receiver or
trustee of Tenant's property; an assignment by Tenant for the benefit of
creditors; or the taking possession of Tenant's property by any governmental
office or agency pursuant to statutory authority for the dissolution or
liquidation of Tenant. If any involuntary proceeding of any type referred to in
this Section 40.E. is instituted against Tenant and is not dismissed within
sixty (60) days thereafter the same shall be considered an event of default.
REMEDIES OF LANDLORD
SECTION 41.
In the event of any default as hereinabove set forth or otherwise, at any
time, without limiting Landlord in the exercise of any other remedy contained
elsewhere in this Lease, at law, in equity, or otherwise, and without any demand
or notice whatsoever (except as expressly required in this Section 41):
A. Landlord may terminate this Lease by giving Tenant 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 termination
date of the Lease Term of this Lease, and all rights of Tenant under this Lease
and in and to the Demised Premises shall expire and terminate and Tenant shall
remain liable for all obligations under this Lease arising up to the date of
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such termination, and Tenant shall surrender the Demised Premises, including any
and all improvements and that certain property described in Section 33, to
Landlord on the date specified in such notice, and if Tenant fails to so
surrender Landlord shall have the right, without notice, to enter upon and take
possession of the Demised Premises and to expel or remove Tenant and its effects
without being liable for prosecution or any claim for damages therefor; or
B. Landlord may terminate this Lease 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 value of the
excess, if any, of the whole Basic Annual Rental, and all other sums and charges
which would have been payable hereunder as additional rental (but excluding
Percentage Rental) by Tenant for the period commencing with the day following
the date of such termination and ending with the expiration date of the Term,
over the aggregate reasonable rental value of the Demised Premises for the same
period, plus the sum of the following: (i) the costs of recovering the Demised
Premises and all other expenses incurred by Landlord due to Tenant's default,
including, without limitation, reasonable and actual attorneys' fees, (ii) the
unpaid rent earned as of the date of termination plus interest at the rate set
forth in Section 51 hereof, (iii) other sums of money and damages owing on the
date of termination by Tenant to Landlord under this Lease or in connection with
the Demised Premises, and (iv) that amount of money equal to six (6) monthly
installments of Basic Annual Rental, all of which shall be deemed immediately
due and payable; or
C. Without terminating this Lease, Landlord may declare immediately due and
payable the present value (using a discount rate of the lower of eight percent
(8%) or the rate of interest then payable on currently-issued United States
Treasury Bills or Notes having a maturity date, at the time of the default,
closest to the scheduled expiration date of the Term) of the Whole Rent (defined
below), together with the cost of recovering the Demised Premises and all other
expenses incurred by Landlord in connection with Tenant's default, plus the
unpaid rent earned as of the date of termination, plus interest at the rate set
forth in Section 51 hereof, plus all other sums of money and damages owing by
Tenant to Landlord under this Lease or in connection with the Demised Premises,
provided, however, that such payments shall not be deemed a penalty but shall
merely constitute payment of liquidated damages, it being understood and
acknowledged by Landlord and Tenant that actual damages to Landlord are
extremely difficult, if not impossible, to ascertain and such sum is a
reasonable pre-estimate of Landlord's probable loss. 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 Demised
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 the preceding sentence less all costs,
expenses and reasonable and actual attorneys' fees of Landlord incurred in
connection with the reletting of the Demised Premises. Such sum shall, at the
option of Landlord, be immediately due and payable upon notice to Tenant as if
by the terms of this Lease they were payable in advance; and Landlord may
immediately proceed to distrain, collect, or bring action for the Whole Rent or
such part thereof as being in arrears, or may file a proof of claim in any
bankruptcy or insolvency proceedings whether similar to the foregoing or not, to
enforce payment thereof. Whole Rent for the balance of the Lease Term after the
happening of any occurrence of any event of default shall be computed as equal
to the greater of:
1. the yearly average of the Basic Annual Rental, additional rental, and
additional charges due and payable by the Tenant from the Rent Commencement
Date to the end of the Lease Year next preceding the date of such
occurrence of default (excluding Percentage Rental), or
2. the Basic Annual Rental, additional rental, and additional charges paid
or payable by the Tenant for the full Lease Year immediately preceding the
date of such occurrence of default; or
3. the product of twelve (12) times the sum of the Basic Annual Rental,
additional rental, and additional charges paid or to be paid in the first
month in which such rent and charges are due under this Lease, times the
number of Lease Years remaining in the Lease Term.
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D. Without terminating this Lease, and with or without notice to Tenant,
Landlord may in its own name or as agent for Tenant enter into and upon and take
possession of the Demised Premises or any part thereof, and, at Landlord's
option, remove persons and property therefrom and such property, if any, may be
removed and stored in 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 or damage which may be occasioned thereby, and Landlord may
rent the Demised Premises or any portion thereof as the agent of Tenant, with or
without advertisement, by private negotiations and for any term upon such terms
and conditions as Landlord may deem necessary or desirable, in Landlord's sole
discretion. Landlord shall in no way be responsible or liable for any failure to
rent the Demised Premises or any part thereof, or for any failure to collect any
rent due upon such reletting. Upon each such reletting, all rentals received by
Landlord from such reletting shall be applied: first, to the payment of any
indebtedness (other than any rent due hereunder) from Tenant to Landlord,
including, without limitation, at Landlord's discretion, amounts due under
Section 41C; second, to the payment of any costs and expenses of such reletting,
including, without limitation, brokerage fees and reasonable and actual
attorneys' fees and costs of alterations and repairs; third, to the payment of
rent and other charges then due and unpaid hereunder; and the residue, if any,
shall be held by Landlord to the extent of and for application in payment of
future rent, if any becomes owing, as the same may become due and payable
hereunder. In reletting the Demised Premises as aforesaid, Landlord may grant
rent concessions and Tenant shall not be credited therefor. If such rentals
received from such reletting shall at any time or from time to time be less than
sufficient to pay to Landlord the entire sums then due from Tenant hereunder,
Tenant shall pay any such deficiency to Landlord. Such deficiency shall, at
Landlord's option, be calculated and paid monthly. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for any such previous default.
E. Without terminating this Lease, and with or without notice to Tenant,
Landlord may enter into and upon the Demised Premises and without being liable
for prosecution or any claim for damages therefor, maintain the Demised Premises
and repair or replace any damage thereto or do anything for which Tenant is
responsible hereunder. Tenant shall reimburse Landlord immediately upon demand
for any expenses which Landlord incurs in thus effecting Tenant's compliance
under this Lease, and Landlord shall not be liable to Tenant for any damages
with respect thereto.
F. Tenant recognizes in the event of a breach or threatened breach by
Tenant of any of the agreements, conditions, covenants, or terms hereof, that
Landlord may suffer irreparable damages which are not capable of being
definitely ascertained, therefore Landlord shall have the right of injunction to
enjoin the same and the right to invoke any other remedy allowed by law or in
equity (or both) whether or not other remedies are herein provided.
G. Without liability to Tenant or any other party and without constituting
a constructive or actual eviction, Landlord may suspend or discontinue
furnishing or rendering to Tenant any property, material, labor, utilities or
other service, wherever Landlord is obligated to furnish or render the same, so
long as Tenant is in default under this Lease.
H. Landlord may allow the Demised Premises to remain unoccupied and collect
rent from Tenant as it comes due.
I. Landlord may foreclose any security interest in the property of Tenant
which Landlord may have under the laws of the State of Georgia or under this
Lease, including the immediate taking of possession of all property on or in the
Demised Premises.
J. The rights and remedies given to Landlord in this Lease are distinct,
separate and cumulative remedies, and none of them, whether or not exercised by
Landlord, shall be deemed to be in exclusion of any of the others.
K. Tenant agrees to reimburse Landlord for all of Landlord's expenses,
including but not limited to reasonable and actual attorneys' fees in enforcing
or attempting to enforce any of Tenant's obligations in this Lease and if
Landlord shall notify Tenant of an event of default under the Lease more than
two (2) times in any Lease Year, Tenant shall be assessed a default fee of Fifty
and 00/100 Dollars ($50.00 ) to cover the administrative costs associated with
giving such notices.
L. Tender of rent or other charges due after legal action has been
commenced against Tenant for nonpayment of rent shall not be a defense to such
action, and Tenant hereby waives its rights under O.C.G.A.ss. 44-7-52 to the
contrary.
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M. Landlord and Tenant (and any sub-tenant) hereby mutually waive any and
all rights which either may have to request a jury trial in any action,
proceeding or counterclaim arising out of this Lease or Tenant's occupancy of or
right to occupy the Demised Premises.
N. Tenant further agrees that in the event Landlord commences any summary
proceeding for nonpayment of rent or possession of the Demised Premises, Tenant
will not interpose and hereby waives all right to interpose any counterclaim of
whatever nature in any such proceeding. Tenant further waives any right to
remove said summary proceeding to any other court or to consolidate said summary
proceeding with any other action, whether brought prior or subsequent to the
summary proceeding.
O. Notwithstanding the above, if Tenant is in default under this Lease more
than two (2) times within any twelve-month period, irrespective of whether or
not such default is cured, then, without limiting Landlord's other rights and
remedies provided for in this Lease or at law or equity, the Security Deposit
shall automatically be increased by an amount equal to the greater of:
a. One (1) times the original Security Deposit as outlined in Section 1.
Q., or
b. One (1) months' Basic Annual Rental,
which shall be paid by Tenant to Landlord forthwith on demand.
REMEDIES CUMULATIVE; NO WAIVER FOR INDULGENCE
SECTION 42.
No reference to any specific right or remedy in this Lease shall preclude
Landlord from exercising any other right or from having any other remedy or from
maintaining any action or proceeding to which it may otherwise be entitled at
law or in equity or both.
Landlord's failure to insist upon a strict performance of any covenant of
this Lease or to exercise any option or right herein contained shall not be a
waiver or relinquishment for the future of such covenant, right or option, or of
the continuance of the failure of Tenant, but the same shall remain in full
force and effect. The receipt by Landlord of any rental or other charge due
hereunder with knowledge of the breach of any provision of this Lease shall not
be deemed a waiver of such breach. No provision of this Lease shall be deemed to
have been waived unless waived in writing and signed by Landlord. No payment by
Tenant or receipt by Landlord of a lesser amount than the monthly payment of
Basic Annual Rental, Percentage Rental, if any, additional rental or other
charges due under this Lease shall be deemed to be other than on account of the
oldest rental then unpaid, and any endorsement or statement on any check or any
letter accompanying any check of payment of rental shall not be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of unpaid amounts or pursue
any other remedy in this Lease, and no waiver by Landlord in respect to one
tenant shall constitute a waiver in favor of any other tenant in the Shopping
Center.
NOTICES
SECTION 43.
A. Any notice, demand, request, consent, approval, or other communication
which either party hereto is required or desires to be given to the other shall
be in writing and shall be given by public or private express delivery mail
(such as Federal Express), or by personal delivery or by United States
Registered or Certified Mail, return receipt requested, addressed to Landlord
and to Tenant at the locations shown in Section 1, and subject to the right of
either party to designate a different address by notice similarly given. Any
notice, demand, request, consent, approval, or other communication so sent shall
be deemed to have been given, as the case may be upon delivery if by express
mail or personal delivery and five (5) business days after the same was so
addressed and deposited in the United States Mail as Registered or Certified
Mail, with postage thereon fully prepaid. Time for response to any such notice
shall commence from the date of actual receipt of such notice.
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B. Tenant's failure to object to any statement, invoice or billing
rendered by Landlord within a period of thirty (30) days after receipt thereof
shall constitute Tenant's acquiescence with respect thereto and shall render
such statement, invoice or billing an account stated between Landlord and
Tenant.
SUBORDINATION
SECTION 44.
A. Except as the contrary is hereinafter set out in Section 44.B., Tenant
agrees that this Lease shall at all times be subject and subordinate to the
encumbrance of any Mortgage (including any amendment or modification thereof)
which is now or hereafter placed on the Demised Premises by the Landlord. If
requested in writing by the Mortgagee or prospective Mortgagee thereof, Tenant
agrees, upon demand, without cost, to execute and deliver an instrument in
substantially the form as Exhibit F or such other form as may be reasonably
required by the Mortgagee or a proposed Mortgagee to effectuate such
subordination, which instrument shall include, among and with any other
provisions required by the Mortgagee, agreement on the part of Tenant to attorn
to any and all successors in interest to the Demised Premises resulting from any
foreclosure of or exercise of the power of sale contained in any such Mortgage
or conveyance in lieu of the foreclosure and shall also provide that Tenant
shall be entitled to continued possession of Demised Premises under this Lease
so long as Tenant complies with all terms, conditions, and provisions of this
Lease and is not in default under the Lease.
B. Anything to the contrary herein notwithstanding, Tenant covenants and
agrees that, if the present or future Mortgagee subordinates said Mortgage to
this Lease, whether the same be part of a general subordination by such
Mortgagee or specifically refers to this Lease, then this Lease shall for all
intents and purposes be considered to be paramount and superior to said Mortgage
and shall survive and continue to remain in full force and effect, even though
said Mortgage be foreclosed; and, Tenant shall continue to comply with all of
its obligations hereunder, whether or not said Mortgage be foreclosed; and, in
the event of any such foreclosure, Tenant agrees to thereafter attorn to
Mortgagee, its successors and assigns, and to any purchaser at foreclosure, its
successors and assigns.
C. Tenant agrees that without the prior written consent of the Mortgagee of
the Shopping Center, it will not prepay any rents or other charges more than
thirty (30) days in advance of the due date required by this Lease, and that
without giving prior written notice to such Mortgagee, it will not terminate
this Lease or exercise any right of set-off, if any, or amend this Lease.
ENVIRONMENTAL MATTERS
SECTION 45
(a) For purposes of this Lease:
(i) "Contamination" as used herein means the uncontained or uncontrolled
presence of or spill, leakage, disposal, or release of Hazardous Substances (as
hereinafter defined) into any environmental media from, upon, within, below,
into or on any portion of the Demised Premises or any other part of the Shopping
Center so as to require remediation, cleanup or investigation under any
applicable Environmental Law (as hereinafter defined).
(ii) "Environmental Laws" as used herein means all federal, state, and
local laws, regulations, orders, permits, ordinances or other requirements, now
or hereafter enacted, promulgated, or in effect, concerning protection of human
health, safety and the environment, all as may be amended from time to time,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. 9601, et. set. ("CERCLA"), the
Resource Conservation and Recovery Act of 1976 and subsequent Hazardous and
Solid Waste Amendments of 1984, 42 U.S.C. 6901, et. seg. ("RCRA"), the Emergency
Planning and Community Right-to-Know Act of 1986, as amended, 42 U.S.C. 1101,
et. seg. ("EPCRA"), the Occupational Safety and Health Act of 1970, as amended,
29 U.S.C. 651, et. seg. ("OSHA"), the Georgia Hazardous Waste Management Act,
O.C.G.A.ss. 12-8-60, et. ., and the Georgia Hazardous Site Response Act,
O.C.G.A.ss.12-8-90, et. sea.
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(iii) "Hazardous Substances" as used herein means any hazardous or toxic
substance, material, chemical, pollutant, contaminant or waste as those terms
are defined by any applicable Environmental Laws (including, without limitation,
CERCLA, RCRA, EPCRA and OSHA) and any solid wastes, polychlorinated biphenyls,
urea formaldehyde, asbestos, radioactive materials, radon, explosives, petroleum
products and soil, and constituents and by-products thereof.
(b) Landlord represents that, except as revealed to Tenant in writing by
Landlord, Landlord has not treated, stored or disposed of any Hazardous
Substances upon or within the Demised Premises.
(c) Tenant represents that all its activities on the Demised Premises or
any other part of the Shopping Center during the Lease Term will be conducted in
compliance with all Environmental Laws. Tenant warrants that it is currently in
compliance with all applicable Environmental Laws and that there are no pending
or threatened notices of deficiency, notices or violation, orders, or judicial
or administrative actions involving alleged violations by Tenant of any
Environmental Laws. Tenant, at Tenant's sole cost and expenses, shall be
responsible for obtaining all permits or licenses or approvals under
Environmental Laws necessary for Tenant's operation of its business in the
Demised Premises and shall make all notifications and registrations required by
any applicable Environmental Laws. Tenant, at Tenant's sole cost and expenses,
shall at all times comply with the terms and conditions of all such permits,
licenses, approvals, notifications and registrations and with any other
applicable Environmental Laws. Tenant warrants that it has obtained all such
permits, licenses or approvals and made all such notifications and registrations
required by any applicable Environmental Laws necessary for Tenant's operation
of its business in the Demised Premises.
<PAGE>
(d) Tenant shall not cause or permit any Hazardous Substances to be brought
upon, stored, treated, generated, produced, handled, kept or used in, on, under
or about or transported to the Demised Premises or any other part of the
Shopping Center by Tenant or its agents, employees, contractors, licensees,
franchisees or invitees without the prior written consent of Landlord, which
consent shall not be unreasonable withheld; provided, however, that the consent
of Landlord shall not be required for the use at the Demised Premises in
compliance with all applicable Environmental Laws of cleaning supplies, toner
for photocopying machines and other similar materials, in containers and
quantities reasonably necessary for and consistent with normal and ordinary use
by Tenant in the routine operation or maintenance of Tenant's office equipment
located at the Demised Premises or in the routine janitorial service, cleaning
and maintenance of the Demised Premises. For purposes of this Section 45,
Landlord shall be deemed to have reasonably withheld consent if Landlord
determines that the presence of such Hazardous Substance within the Demised
Premises could result in a risk of harm to person or property or otherwise
negatively affect the value or marketability of the Shopping Center.
(e) Tenant shall not cause or permit the spill, leakage, disposal, or
release ("Release") of any Hazardous Substances by Tenant or its agents,
contractors, employees, licensees, franchisees, or invitees into any
environmental media such as air, water or land, or into or on or from the
Demised Premises or any other part of the Shopping Center in any manner that
violates any Environmental Laws. If such Release shall occur, Tenant shall (i)
take all steps reasonably necessary to contain and control such Release and any
associated Contamination, (ii) clean up or otherwise remedy such Releases and
any associated Contamination to the extent required by, and take any and all
other actions required under, applicable Environmental Laws, and (iii) notify
and keep Landlord reasonably informed of such Release and response.
(f) Regardless of any consents granted by Landlord pursuant to Section
45(d) hereof allowing Hazardous Substances upon the Demised Premises, Tenant
shall under no circumstances whatsoever (i) cause or permit any activity on the
Demised Premises which would cause the Demise Premises to become subject to
regulation as a hazardous waste treatment, storage or disposal facility under
RCRA or the regulations promulgated thereunder; (ii) discharge Hazardous
Substances into the storm sewer system serving the Shopping Center; or (iii)
install any underground storage tank or underground piping in, on or under the
Demised Premises.
(g) Tenant shall and hereby does indemnify and hold harmless Landlord and
its officers, directors, employees, agents and partners from and against any and
all expense, loss, and liability suffered by Landlord, and/or any such other
parties by reason of Tenant's improper storage, generation, handling, treatment,
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transportation, disposal, or arrangement for transportation or disposal, of any
Hazardous Substances (whether accidental, intentional, or negligent) or by
reason of Tenant's break of any of the provisions of this Section 45. Such
expenses, losses, and liabilities shall include, without limitation, (i) any and
all expenses that Landlord may incur to comply with any Environmental Laws as a
result of Tenant's failure to comply therewith; (ii) any and all costs that
Landlord may incur in studying or remedying any Contamination at or arising from
the Demised Premises or any other part of the Shopping Center; (iii) any and all
costs that Landlord may incur in studying, removing, disposing or otherwise
addressing any Hazardous Substances; (iv) any and all fines, penalties or other
sanctions assessed upon Landlord by reason of Tenant's failure to comply with
Environmental Laws; and (v) any and all legal and professional fees and costs
incurred by Landlord in connection with the foregoing. The indemnity contained
herein shall survive the termination or expiration of this Lease.
(h) Landlord shall have the right, but not the obligation, to enter the
Demised Premises at reasonable times throughout the Lease Term to audit and
inspect the Demised Premises for Tenant's compliance with this Section 45.
(i) At Landlord's request, which shall not be more frequent than once per
Lease Year, Tenant shall retain an independent engineer or other qualified
consultant or expert acceptable to Landlord to conduct, at Landlord's sole cost
and expense, an environmental audit of the Demised Premises and immediate
surrounding areas, and the scope of work to be performed by such engineer,
consultant or expert shall be approved in advance by Landlord, and a copy of all
of the work product shall be provided to Landlord. Should such environmental
audit reveals the presence of Hazardous Substances in the Demised Premises or
the immediate surrounding area which were caused by reason of Tenant's improper
storage, generation, handling, treatment, transportation, disposal, or
arrangement for transportation or disposal, of any Hazardous Substances (whether
accidental, intentional, or negligent) or by reason of Tenant's breaking of any
of the provisions of this Section 45, then the Tenant shall reimburse Landlord
the cost and expense of the environmental audit. Tenant shall, at Landlord's
request, from time to time, execute affidavits and representations concerning
Tenant's best knowledge and belief regarding the presence of Hazardous
Substances in the Demised Premises. Tenant shall reimburse Landlord, promptly
upon request, the reasonable cost of any testing for the purpose of ascertaining
if Hazardous Substances are at or emanating from the Demised Premises, if such
testing is required by any governmental agency or Landlord's mortgagee. Upon the
expiration or earlier termination of this Lease, Tenant shall surrender the
Demised Premises to Landlord free from any Hazardous Substances.
LEASING AGENT
SECTION 46.
Tenant represents and warrants that there are no claims for brokerage
commissions or finder's fees in connection with this Lease for agents, brokers,
or finders having dealt with Tenant or alleging to have dealt with Tenant other
than as set forth in this Section 46. Tenant agrees to indemnify Landlord and to
hold Landlord harmless from and against all liability arising from any such
claim and related reasonable and actual attorneys' fees. Tenant acknowledges
that Tenant has been informed that agents for Wheeler/Kolb Management Company
(representing Landlord) and Southeast Commercial Properties, Inc. (representing
Tenant) are acting as leasing agents in connection with this Lease. Landlord
shall solely be responsible for brokerage commissions due to such agents and
agrees to indemnify Tenant and hold Tenant harmless from all liability arising
from any claim by Wheeler/Kolb Management Company (representing Landlord) and
Southeast Commercial Properties, Inc. (representing Tenant) and related
attorneys' fees.
ADDITIONAL PROPERTY
SECTION 47.
Landlord may from time to time, without prior notice to or consent of
Tenant, add or withdraw land and improvements thereon to or from the Shopping
Center Land. Any property so added shall thereafter be subject to the terms of
this Lease and shall be included in the terms "Shopping Center" and "Shopping
Center Land" whichever is applicable as used in this Lease. Any property or land
so withdrawn by Landlord shall thereafter not be subject to the terms of this
Lease and shall be excluded from the terms "Shopping Center" and "Shopping
Center Land" as used in this Lease.
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MORTGAGE DEFINED
SECTION 48.
As used in this Lease, the term "Mortgage" shall be construed to include a
Mortgage, Deed to Secure Debt, Security Deed, Security Agreement, Collateral
Assignment of Rentals, Collateral Assignment of Leases, any one or more of them
or any other encumbrance to secure a debt howsoever created, except as
hereinafter to the contrary provided, affecting the right, title or interest of
the Landlord in and to:
(a) any of the land described on Exhibit B or any improvements at any
time situated thereon;
(b) any present or future lease of any part or parts of the land
described in Exhibit B or any present or future lease of any improvements
at any time situated thereon, or any present or future rental or income
therefrom; and
(c) any personal property from time to time owned by Landlord and used
or useful in connection with the operation of the Shopping Center, or any
one or more of the foregoing;
excluding, however, any mechanic's liens, judgment liens, or liens which result
from creditor proceedings. The term "Mortgagee" shall be deemed to include the
holder or owner of any such Mortgage.
LIMITED LIABILITY
SECTION 49.
Anything contained in this Lease to the contrary notwithstanding, Tenant
agrees that it shall look solely to the estate and property of the Landlord in
the Shopping Center Land and buildings comprising the Shopping Center of which
the Demised Premises form a part for the collection of any judgment (or other
judicial process) requiring the payment of money by Landlord for any default or
breach by Landlord of any of its obligations under this Lease, subject, however,
to the prior rights of the holder of any Mortgage. No other assets of the
Landlord shall be subject to levy, execution, or other judicial process for the
satisfaction of Tenant's claim and there shall be absolutely no personal
liability on the part of Landlord, or its successor, or any partners or
corporate shareholders or officers, employees or agents of Landlord or its
successor, with respect to any of the terms, conditions and covenants of this
Lease. This provision shall not be deemed, construed, or interpreted to be an
agreement, express or implied, between Landlord and Tenant that the Landlord's
interest in this Lease and in the Shopping Center Land and any improvements
thereon shall be subject to impressment of an equitable lien or otherwise.
OTHER AGREEMENTS
SECTION 50.
Landlord has entered into or may enter into a construction, reciprocal
easement and operating agreement (hereinafter called "Operating Agreement") or a
lease agreement (hereinafter called "Major Store Lease") with the owners or
occupants of present or future Major Stores, providing for cross easements for
parking, ingress and egress and other privileges with respect to the Common
Areas. This Lease is subject and subordinate to any such Operating Agreement or
Major Store Lease, but Landlord warrants and represents that nothing in such
agreements will prohibit Tenant from exercising its privileges set out in this
Lease in accordance with and subject to the terms hereof.
INTEREST RATE
SECTION 51.
Where under the terms of this Lease interest shall be provided for, such
interest, shall be the maximum lawful rate of interest per annum permissible
under the laws of the State of Georgia at that time or if there is none, then at
the rate of eighteen percent (18%) per annum, and shall accrue from the date
when the same becomes due and payable by the terms and provisions hereof until
paid, to which shall be added reasonable and actual attorneys' and collection
fees.
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TIME OF ESSENCE
SECTION 52.
Time is of the essence with respect to the performance of each of the
covenants and agreements under this Lease.
CAPTIONS
SECTION 53.
The captions of the Sections of this Lease are for convenience only and
shall not be considered or referred to in resolving questions of interpretation
or construction.
MODIFICATION
SECTION 54.
This Lease and the exhibits, rider and addenda if any attached contain all
covenants and agreements between Landlord and Tenant relating in any manner to
the rental, use, and occupancy of the Demised Premises and the other matters set
forth in this Lease. No prior agreement or understanding pertaining to the same
shall be valid or of any force or effect; and, the covenants and agreements of
this Lease cannot be altered, changed, modified or added to except in writing
signed by Landlord and Tenant. No representation, inducement, understanding or
anything of any nature whatsoever made, stated or represented on Landlord's
behalf, either orally or in writing (except this Lease), has induced Tenant to
enter into this Lease. The submission of this document for examination does not
constitute an offer to lease and this Lease becomes effective only upon
execution and delivery thereof by Landlord and Tenant. Neither this Lease nor
any memorandum or short form of this Lease may be recorded.
SEVERABILITY
SECTION 55.
Any provision of this Lease or any paragraph, sentence, clause, phrase, or
wording appearing herein which shall prove to be invalid, void, or illegal for
any reason shall in no way affect, impair, or invalidate any other provision
hereof, and the remaining provisions, paragraphs, sentences, clauses, phrases,
and words hereof shall nevertheless remain in full force and effect.
RELATIONSHIP OF PARTIES
SECTION 56.
Anything contained in this Lease to the contrary notwithstanding, it is
agreed that Landlord shall in no event be deemed to be a partner or engaged in a
joint venture with or an associate of Tenant or any party associated with Tenant
in the conduct of its business or otherwise, and Landlord shall not be liable
for any debts incurred by Tenant in the conduct of its business. The
relationship of Landlord and Tenant as established by this Lease is that of
landlord and tenant only. None of the language or terminology of this Lease
shall be construed to create any other form of relationship between Landlord and
Tenant.
SECURITY DEPOSIT
SECTION 57.
Tenant shall deposit with Landlord the amount of the Security Deposit as
set forth in Section 1.Q. upon the execution of this Lease by Tenant. The
Security Deposit shall be held by Landlord without liability for interest and
without any obligation to segregate it from Landlord's general funds as security
for the faithful performance by Tenant of all the terms of this Lease to be
observed and performed by Tenant. The Security Deposit shall not be mortgaged,
assigned, transferred or encumbered by Tenant without the written consent of
Landlord, and any such act on the part of Tenant without Landlord's written
consent shall be without force and effect and shall not be binding upon
Landlord. If any item of rent herein reserved or any other sum payable by Tenant
to Landlord shall be overdue and unpaid, or should Landlord make payments on
behalf of the Tenant, or should Tenant fail to perform any of the terms of this
Lease, then Landlord may, at its option and without prejudice to any other
remedy which Landlord may have on account thereof, appropriate and apply the
Security Deposit or so much thereof as may be necessary to compensate Landlord
toward the payment of Basic Annual Rental, Percentage Rental, or additional
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rental or loss or damage sustained by Landlord due to such breach on the part of
Tenant, including without limitation, any damages or deficiency in the reletting
of the Demised Premises, whether such damages or deficiency accrue before or
after summary proceedings, or other re-entry by Landlord, and Tenant shall
forthwith upon written demand within five (5) calendar days restore the Security
Deposit to the original sum deposited. Should Tenant comply with all terms of
this Lease and promptly pay all Basic Annual Rental, Percentage Rental, and
additional rental, as they fall due, the Security Deposit shall be returned in
full to Tenant at the end of the Lease Term when Tenant has surrendered
possession of the Demised Premises to Landlord and Landlord has accepted the
Demised Premises. In the event of bankruptcy or other creditor-debtor
proceedings against Tenant, the Security Deposit shall be deemed to be applied
first to the payment of Basic Annual Rental, Percentage Rental, additional
rental, and other charges due Landlord for all periods prior to the filing of
such proceedings. The Security Deposit shall not constitute liquidated damages.
Landlord may deliver the Security Deposit to any purchaser of Landlord's
interest in the Demised Premises in the event that Landlord's interest is sold,
and thereupon Landlord shall be discharged from any further liability with
respect to the Security Deposit, and Tenant shall look solely to such purchaser
for the return of the Security Deposit. This provision shall also apply to any
subsequent transferees.
CONSTRUCTION AND INTERPRETATION
SECTION 58.
It is agreed that in the construction and interpretation of the terms of
this Lease the rule of construction that a document is to be construed most
strictly against the party who prepared the same shall not be applied, it being
agreed that both parties hereto have participated in the preparation of the
final form of this Lease. This Lease shall be construed in accordance with and
governed by the laws of the State of Georgia.
PROMOTION
SECTION 59.
Tenant shall include the address and identity of its business activities in
the Demised Premises in all advertisements made by Tenant in which the address
and identity of any similar local business activity of Tenant is mentioned and
shall not divert from the Demised Premises any business which normally would be
transacted there. Use by Tenant in advertising, letterheads or otherwise of the
name Lindbergh Plaza, pictures or drawings of the Shopping Center and buildings
contained therein, or any distinctive trade name, trademark, or logo used by
Landlord shall be subject to such restrictions and regulations as Landlord may
from time to time prescribe.
RELOCATION OF DEMISED PREMISES
SECTION 60.
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LANDLORD TERMINATION
SECTION 61.
Notwithstanding anything contained in this Lease to the contrary, but in
addition to any right which Landlord may have in the event of a default by the
Tenant, Landlord shall have the option to terminate this Lease without cause at
any time by written notice to the Tenant ("Termination Notice"), such notice to
be effective on the termination date (the "Termination Date") specified in the
Termination Notice but in no event prior to June 30, 2003. The Termination
Notice may be given at any time, but not less than 180 days prior to the
Termination Date. Tenant shall not be entitled to any compensation or
consideration from Landlord in the event Landlord exercises its right to
terminate the Lease as provided in this paragraph.
On the Termination Date, this Lease shall terminate as if the Termination
Date was the date set forth in the Lease for the expiration of the Lease Term.
Tenant shall deliver the Premises to Landlord on or before the Termination Date
in accordance with the terms and conditions of this Lease. In the event Tenant
fails to vacate the Premises by the Termination Date, then in addition to any
other rights and remedies which the Landlord may have as provided elsewhere in
the Lease, Tenant shall be liable for all damages suffered by the Landlord as a
result of such failure.
TENANT TERMINATION
SECTION 62.
Notwithstanding anything in this Lease to the contrary, Tenant shall have
the option to terminate this Lease without cause by written notice to the
Landlord ("Termination Notice"), such notice to be effective on the termination
date (the "Termination Date") specified in the Termination Notice. The
Termination Notice may be given at any time after the first full Lease Year, but
not less than 90 days prior to the Termination Date. Tenant shall simultaneously
with the Termination Notice remit to the Landlord a sum equal to three (3) full
months Base Rent plus Common Area Maintenance, Real Estate Taxes and Insurance
Charges ("Termination Fee") according to the amounts set forth in the Lease.
During the 90 day Termination Notice period, Tenant shall continue to pay all
monthly rents and charges due to the Landlord pursuant to the terms and
conditions of the Lease. Tenant shall not be entitled to any compensation or
consideration from Landlord in the event Tenant exercises its right to terminate
the Lease as provided in this paragraph.
On the Termination Date, this Lease shall terminate as if the Termination
Date was the date set forth in the Lease for the expiration of the Lease Term.
Tenant shall deliver the Premises to Landlord on or before the Termination Date
in accordance with the terms and conditions of this Lease. In the event Tenant
fails to vacate the Premises by the Termination Date, then in addition to any
other rights and remedies which the Landlord may have as provided elsewhere in
the Lease, Tenant shall be liable for all damages suffered by the Landlord as a
result of such failure.
AS-IS
SECTION 63.
Notwithstanding anything contained in this Lease to the contrary, Tenant
accepts the Demised Premises "as-is" and "where is" and in the condition in
which they currently exist. Tenant acknowledges that Landlord is not required to
complete any work within the Demised Premises prior to Tenant's occupancy. The
outline of Landlord's Work in Exhibit "C" is made solely in the event that
Landlord is required under the Lease to restore the Demised Premises following a
casualty or a taking by Eminent Domain. Tenant must provide complete
architectural plans and specification for approval by the Landlord, which
approval must be in writing. Tenant shall promptly commence and diligently
complete Tenant's Work as required by and in accordance with Exhibit "C" and
Tenant's approved plans. Notwithstanding the above, Landlord shall make a one
time inspection of the utilities and HVAC and warrant that they are in good
operating order on the Turnover Date of the Demised Premises to Tenant.
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IN WITNESS WHEREOF, the Landlord and Tenant have caused this Lease to be
executed and delivered in quadruplicate, each counterpart being deemed an
original, on the date hereinabove set out.
LANDLORD:
NORO-BROADVIEW HOLDING COMPANY, B.V.
By: /s/ John Sexton
------------------------------------ -------------------------------------
Witness John Sexton, not individually,
but as Attorney-In-Fact pursuant to
Power of Attorney dated July 21, 1998
TENANT:
ABSOLUTE CARE, INC.
a Delaware corporation
By: /s/ Alan S. Cohn
------------------------------------ -------------------------------------
Witness Name/Title: Alan S. Cohn, CEO
-----------------------------
Attest: /s/ Joel H. Alperstein
---------------------------------
Name/Title: Joel H. Alperstein, CFO
-----------------------------
(Affix Corporate Seal)
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EXHIBIT A
(Lease Plan)
<PAGE>
EXHIBIT B
Description of the Shopping Center Land
<PAGE>
EXHIBIT "C"
OUTLINE OF LANDLORD'S WORK AND TENANT'S WORK
GENERAL:
This Exhibit "C" is intended to describe the obligations of both Landlord
and Tenant with respect to the design and construction of the Demised Premises.
A. DEMISED PREMISES - LANDLORD'S WORK
1. DEMISED WALLS
Partition walls shall be 3-1/2 inch metal studs at twenty-four inches
on center with 1/2 inch gypsum wallboard, minimum, at cross partition,
at sales area and at toilet room. Typical demising walls to be 5 5/8
inch metal studs at 16 inches on center with 5/8 inch fire code "C"
gypsum wallboard, one hour rated construction with insulation if
required by code. Wall finish to be taped and sanded, ready for
painting in sales area and toilet room.
2. FLOOR
Finished four inch concrete floor slab on vapor barrier. Landlord will
have the option to leave a cut out in the rear of the Premises if the
Tenant is a restaurant use. Vinyl floor tile (12" x 12" x 3/32") in
the toilet room.
3. ELECTRIC SERVICE
One Hundred Fifty (150) amp service with one electrical outlet for
every fifteen linear feet along the demising walls with conduit and
connected to each Tenant's panel board.
4. WATER SERVICE AND SEWER SERVICE
One inch (1") water line with 3/4 inch meter, one bathroom with toilet
and cold water sink, mirror and toilet paper holder. (Two bathrooms if
required by code.)
5. SPRINKLERS
A sprinkler system which is designed on the basis of one sprinkler
head per the required number of square feet of Demised Premises to
meet the current governmental firecode, if required.
6. STOREFRONT AND STOREFRONT CLOSURE
All shop storefronts shall be a minimum of aluminum extrusions of a
standard 1-3/4" x 4-1/2" storefront system, single glazed with 1/4
inch plate glass, tempered as required with one single door entrance.
7. CEILING
Suspended 2'-0" x 4'-0" acoustical tile ceiling in sales area and
toilet room; acoustical tile to be white 5/8" thick, Armstrong
"Minaboard", Cortega, or equal. Electrical lighting for shops shall be
recess mounted, four tube 2' x 4' fluorescent fixtures installed at
the rate of one fixture per 96 square feet of sales area. Fixture
shall be G.E. "Bonus Line" series, or equal. Lighting in storage rooms
shall be 8 feet long, two tube fluorescent fixtures at the rate of one
fixture per 300 square feet. Toilet rooms shall have a switched
surface mounted pendant fixture with convenience receptacle mounted
above the lavatory. (The toilet room exhaust fan shall also be wired
to this switch.)
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8. HEATING AND AIR CONDITIONING
Heating shall be provided for the entire shop space; cooling for the
sales area only, at the rate of one ton of air conditioning per 400
square feet, minimum.
9. DOORS
Door in cross partition to be a 3'-6" x 6'-8" hollow core wood door in
hollow metal frame with lockset. Door in toilet room to be a 4'-0" x
6'-8" pre-hung hollow core wood door and frame with privacy set and
allowing a turning radius of at least five (5) feet. Door at rear of
shop shall be a 3' 0" x 7' 0" hollow metal door and frame with
exterior drip flashing and lockset.
B. DEMISED PREMISES - TENANT'S WORK
1. PERMITS AND UTILITIES
a. A certificate of occupancy permit.
b. Telephone service between the point of entry in the basic
building and the Demised Premises, if not completed by Bell
South.
c. All utility meters unless otherwise indicated in this Exhibit C.
d. Grease trap at a Landlord approved location, if required by code.
2. ABOVE CEILING
All materials installed above the ceiling of the Demised Premises for
the installation of equipment, as approved by Landlord, shall be
incombustible. All wiring above ceilings shall be in conduit.
3. TENANT ELECTRICAL SYSTEMS
Any electrical work, including service, wire, meter bases,
transformers, circuit panels, branch circuit wiring devices, lighting
fixtures, lamps, emergency lighting, communication systems, which is
in addition to the electrical work required of Landlord herein and
which is completed by Tenant, shall conform to the requirements of the
governmental authorities, the National Electric Code and the local
utility.
4. EMPLOYEES
Tenant at all times will enforce strict discipline and good order
among its employees and contractors hired or retained by Tenant and
their subcontracts and their respective employees to perform Tenant's
Work and Tenant's contractors and their subcontractors will work in
harmony with other contractors' personnel performing work in the
Shopping Center.
5. INSURANCE
(a) Tenant agrees, prior to commencement of construction, to furnish
Landlord with Certificate(s) of Insurance evidencing that Tenant
or Tenant's contractor has obtained Builder's Risk Insurance in
an amount equal to one hundred percent (100%) of the replacement
cost of Tenant's Work and all trade fixtures, signs, plate glass,
floor covering, decorative items, furniture, furnishings,
machinery, equipment and merchandise in the Demised Premises in
the form of a Standard Fire and Extended Coverage Insurance
Policy and that all other risks of direct physical loss as
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insured against under Special Form ("all risk" coverage) are
insured against as required by Section 26 of this Lease.
(b) Tenant or Tenant's contractor and/or subcontractors will, during
the period of construction of its work, secure and maintain a
Commercial General Liability Policy and furnish Landlord with a
certificate thereof as required by Section 26 of this Lease.
(c) Tenant or Tenant's contractor and/or subcontractors will cause
its contractor and subcontractors to secure and maintain in
effect statutory Workers' Compensation and other insurance as
required by the state where the Shopping Center is located and
will furnish Landlord with a certificate thereof.
6. SURETY BONDS
Tenant shall, prior to commencement of the work in the Demised
Premises, cause its contractor to furnish a bond with adequate surety
in the full amount of the cost of Tenant's Work naming Landlord and
its construction and permanent lenders as co-obligees and covering
payments and performances of the work as well as labor and material
payments in connection therewith. Copy of said bond to the delivered
to Landlord prior to commencement of Tenant's Work.
7. PROCEDURE
A. If the Demised Premises are to be constructed or renovated by
Landlord:
1. After execution of this Lease, Landlord will prepare and
forward to Tenant an outline drawing of Tenant's Demised
Premises, together with a copy of the Store Design Criteria.
2. Within ten (10) days thereafter, Tenant will submit to
Landlord three (3) sets of "Preliminary Plans" consisting of
architectural, electrical, and mechanical plans for
Landlord's approval, which when submitted shall include the
following:
a. Show in complete detail all parts which will affect the
appearance of the Demised Premises and it
architectural, mechanical, and electrical components.
b. Plans, section and elevation must be drawn to scale.
c. Drawings to include dimensions, materials and color
texture specifications (color chips shall be included).
d. Plans and specifications must be prepared by an
approved architect or store designer. All drawings
(plans) must be stamped by the approved architect or
store designer.
e. Sign, plans and specifications which shall be in
accordance with Exhibit D (Sign Criteria).
3. Within ten (10) calendar days thereafter, Landlord will
return to Tenant one (1) copy marked "Approved as Noted",
"Approved" or "Disapproved".
4. Within five (5) calendar days thereafter, Tenant will submit
three (3) sets of "Complete Working Drawings and
Specifications" incorporating any changes which Landlord may
have requested in the "Preliminary Plans" to Landlord for
Landlord's approval.
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5. The complete working drawings and specifications of Tenant's
Work in Tenant's Demised Premises must be approved in
writing by Landlord prior to Tenant's performing any work in
the Demised Premises.
6. It is understood and agreed between Landlord and Tenant that
costs incurred by Landlord, if any, as a result of Tenant's
delay in providing plans shall be the sole responsibility of
Tenant and such costs will be paid by Tenant.
7. Tenant will start construction within ten (10) days after
being notified by Landlord that the Demised Premises are
ready for Tenant to perform its work. Before beginning such
work, Tenant shall obtain all necessary permits from the
jurisdictional authorities and other authorities and submit
copies of same to Landlord.
8. Tenant shall complete all work within the Demised Premises
as expeditiously as possible.
9. Tenant shall secure an occupancy permit, if required, from
the jurisdictional authorities at least three (3) days prior
to November 15, 2000 and furnish a copy of same to Landlord.
10. The approval of Landlord or Landlord's architect of any
plans and/or specifications or any work performed by Tenant
shall not constitute or be deemed a waiver of any
requirement of this Lease, the Store Design Criteria, or the
outline drawings referred to in Paragraph 7.1. above and all
requirements contained in any and all of the foregoing are
reserved. Tenant shall be liable for any failure of Tenant
or Tenant's architects or engineers to comply with any of
said requirements.
B. If the Demised Premises are existing on the date hereof:
1. After execution of this Lease, Landlord will prepare and
forward to Tenant an outline drawing of Tenant's Demised
Premises, together with a copy of the Store Design Criteria.
2. Within ten (10) days thereafter, Tenant will submit to
Landlord three (3) sets of "Preliminary Plans" consisting of
architectural, electrical, and mechanical plans for
Landlord's approval.
3. The complete working drawings and specifications of Tenant's
Work in Tenant's Demised Premises must be approved in
writing by Landlord prior to Tenant's performing any work in
the Demised Premises.
4. Tenant will start construction within three (3) days after
being notified by Landlord that the Demised Premises are
ready for Tenant to perform its work. Before beginning such
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work, Tenant shall obtain all necessary permits from the
jurisdictional authorities and other authorities and submit
copies of same to Landlord.
5. Tenant shall secure an occupancy permit, if required, from
the jurisdictional authorities at least three (3) days prior
to opening and furnish a copy of same to Landlord.
6. The approval of Landlord or Landlord's architect of any
plans and/or specifications or any work performed by Tenant
shall not constitute or be deemed a waiver of any
requirement of this Lease, the Store Design Criteria, or the
outline drawings referred to in Paragraph 7.1. above and all
requirements contained in any and all of the foregoing are
reserved. Tenant shall be liable for any failure of Tenant
or Tenant's architects or engineers to comply with any of
said requirements.
8. CONSTRUCTION PROCEDURE AND SPECIAL PROVISIONS APPLICABLE TO TENANT'S WORK
1. Tenant and Tenant's contractors are limited to performing
their work, including any office or storage for construction
purposes, within the Demised Premises only.
2. Tenant and Tenant's Contractors shall each be responsible
for daily removal from the Shopping Center Land of all
trash, rubbish and surplus material resulting from
construction. If Tenant, its agents or contractors fail to
remove these items daily, Landlord or its contractors may
remove them at their discretion and charge Tenant for the
cost of removal plus twenty percent (20%) for administrative
costs.
3. Tenant's Work shall be done in such a manner as to be
coordinated with all work being performed or to be performed
by Landlord and other tenants of Landlord in the project to
such an extent that Tenant's Work shall not interfere with
nor delay the completion of any such work in the project.
Landlord shall not be liable for any injury to person or
damage to property of Tenant, or of Tenant's employees,
licensee or invitees, from any cause whatsoever occurring
upon or about the Demised Premises, and Tenant shall and
will indemnify and save Landlord and its partners, officers,
employees, licensees, invitees, and the successors or
assigns of any of the foregoing, harmless from any and all
liability and claims arising out of or connected with such
injury or damage.
4. Tenant agrees that it, its general contractors or their
subcontractors shall use only labor which will work in
harmony with the labor force of Landlord's general
contractor.
5. Landlord's general contractor shall have the right to
establish reasonable rules and regulations governing Tenant
and Tenant's contractors in order that the construction of
the Shopping Center proceed in a safe and orderly manner in
accordance with all of the provisions of this Lease and all
applicable governmental requirements.
9. ROOF PENETRATIONS
Any Tenant required roof penetrations will be at Tenant's cost and will be
performed only by Landlord or Landlord's roofing contractor, and shall be
subject to Landlord's final approval and acceptance.
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10. MISCELLANEOUS
Whether or not otherwise specifically required herein, all Tenant's Work
shall comply with the requirements, rules and regulations of all
authorities having governmental jurisdiction over the Demised Premises. In
all instances where Tenant is to install any item, it shall also furnish
such item.
11. WORK CHANGES
Any changes in Tenant's Work during the course of its construction which
may be required by the governmental authorities or Landlord's underwriters
shall be performed by Tenant at Tenant's expense.
12. AS-IS
Notwithstanding anything contained in this Lease to the contrary, Tenant
accepts the Demised Premises "as-is" and "where is" and in the condition in
which they currently exist. Tenant acknowledges that Landlord is not
required to complete any work within the Demised Premises prior to Tenant's
occupancy. The outline of Landlord's Work in Exhibit "C" is made solely in
the event that Landlord is required under the Lease to restore the Demised
Premises following a casualty or a taking by Eminent Domain,. Tenant must
provide complete architectural plans and specifications for approval by the
Landlord, which approval must be in writing. Tenant shall promptly commence
and diligently complete Tenant's Work as required by and in accordance with
Exhibit "C" and Tenant's approved plans. Notwithstanding the above,
Landlord shall make a one time inspection of the utilities and HVAC and
warrant that they are in good operating order on the Turnover Date of the
Demised Premises to Tenant.
By: /s/ John Sexton
------------------------------------
Landlord
By: /s/ Alan S. Cohn
------------------------------------
Tenant
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<PAGE>
EXHIBIT "D"
SIGN CRITERIA
INSERT FROM FILE
<PAGE>
EXHIBIT E
TENANT'S CERTIFICATE
TO:
----------------------------
Name
----------------------------
Address
----------------------------
City State Zip
The undersigned, as Tenant under that certain Lease (the "Lease")dated
_______________, 19__, made with _________________________________, as Landlord,
hereby certifies to as follows:
(1) That the undersigned has accepted and entered into occupancy of the Demised
Premises described in said Lease;
(2) That attached hereto as Exhibit A is a true, correct and complete copy of
the Lease and that said Lease is in full force and effect and has not been
assigned, modified, supplemented or amended in any way except: ________________;
(3) That the same represents the entire agreement between the parties as to said
leasing;
(4) That the Rent Commencement Date of the Lease Term is ______________________;
(5) That the expiration date of the Lease Term of the Lease is , and that Tenant
does not have any rights or options to renew the Lease or to extend the term
thereof or to lease additional space in the Shopping Center (as defined in the
Lease), except as for
(6) That all conditions of the Lease to be performed by Landlord and necessary
to the enforceability of the Lease have been satisfied;
(7) That there are no defaults by either Tenant or Landlord thereunder;
(8) That no rentals have been prepaid, other than as provided in the Lease;
(9) That on this date there are no existing defenses or offsets which the
undersigned has against the enforcement of the Lease by Landlord;
(10) That as of this date there are no actions, whether voluntary or otherwise,
pending against Tenant under the bankruptcy or insolvency laws of the United
States or any state thereof; and
(11) All improvements to the Demised Premises required to be built under the
Lease, if any, have been fully and satisfactorily completed. All allowances and
contributions, if any, payable by Landlord to Tenant, or by Tenant to Landlord,
relating to the structures and improvements comprising the Demised Premises have
been paid in full.
The undersigned hereby agrees:
(1) To disclaim all right, title or interest in the Demised Premises except
the rights granted by the Lease;
(2) To send a copy of any notice or demand given or made to Landlord
pursuant to the provisions of the Lease by Certified or Registered Mail to
_____________________________ at _______________________________________ who is
or will be the owner and holder of a Mortgage on the Demised Premises, or its
assignee;
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(3) To give the holder of such Mortgage, or its assignee, a reasonable
period of time to cure any default complained of in said notice or demand; and
(4) That no consent of Landlord to any modification or assignment of the
Lease, or any termination of the Lease, shall be effective without prior written
notice to the holder of such Mortgage, or its assignee.
TENANT
----------------------------------------
2
<PAGE>
EXHIBIT F
SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT (this
"Agreement"), is made this ________day of ______________, 19___, between
____________________________________________________, with offices at
___________________________________________________________, (hereinafter called
"Tenant"), ___________________________________________, (hereinafter called
"Mortgagee"), and ____________________________________, with a mailing address
of P. O. Box 988, Duluth, Georgia 30136 (hereinafter called "Landlord").
WITNESSETH:
WHEREAS, Tenant has entered into a certain Lease dated ___________, 19__,
with Landlord, which Lease has been amended by Amendment Agreement dated
____________________, 19___, covering certain Demised Premises known and
numbered as _____________________________________________ in the Shopping Center
known as _______________________________________ in ______________,
___________________ County, Georgia (the "Lease"); and
WHEREAS, Mortgagee has agreed to make a mortgage loan (the "Mortgage Loan")
to the Landlord, provided, however, that the Lease is subordinated to the
security interest and lien of the Security Deed or Deed to Secure Debt and
Security Agreement which secures said Mortgage Loan (the "Mortgage"); and,
WHEREAS, Mortgagee has been requested by Tenant and by Landlord to enter
into this Subordination, Non-Disturbance and Attornment Agreement with Tenant;
NOW, THEREFORE, in consideration of the Lease and the mutual covenants
hereinafter contained, the parties hereto mutually covenant and agree as
follows:
1. The Lease and any extensions, renewals, replacements or modifications
thereof, and all of the right, title and interest of Tenant in and to the
Demised Premises, are and shall be subject and subordinate to the Mortgage and
to all of the terms and conditions contained therein, and to any renewals,
modifications, replacements, consolidations and extensions thereof; and
2. Mortgagee consents to the Lease and, in the event of foreclosure of said
Mortgage, or in the event Mortgagee comes into possession or acquires title to
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<PAGE>
the Demised Premises as a result of the enforcement or foreclosure of the
Mortgage or the note secured thereby, or as a result of any other means,
Mortgagee agrees that Tenant shall not be disturbed in its possession of the
Demised Premises, except for any reason which would entitle the Landlord to
terminate the Lease under its terms, or would cause, without any further action
by such Landlord, the termination of the Lease, or would entitle such Landlord
to dispossess Tenant from the Demised Premises; and provided, further that at
the time Mortgagee comes into possession of the Demised Premises; Tenant is not
in default under the Lease and that no event has occurred and no condition then
exists which, after the passage of time (after notice required by the Lease, if
any) would entitle Landlord to terminate the Lease under its terms or would
cause, without any further action of such Landlord, the termination of the
Lease, or would entitle such Landlord to dispossess Tenant from the Demised
Premises.
3. Tenant agrees with Mortgagee that, if the interests of Landlord in the
Demised Premises shall be transferred to and owned by Mortgagee by reason of
foreclosure or other proceedings brought by it, or by any other manner, Tenant
shall be bound to Mortgagee under all of the terms, covenants and conditions of
the Lease for the balance of the Lease Term and any extensions or renewals
thereof which may be effected in accordance with any option therefor in the
Lease, with the same force and effect as if Mortgagee were Landlord under the
Lease, and Tenant does hereby attorn to Mortgagee as its Landlord, said
attornment to be effective and self-operative without the execution of any
further instruments on the part of the parties hereto immediately upon Mortgagee
succeeding to the interest of Landlord in the Demised Premises. Tenant agrees,
however, upon the election of and written demand by Mortgagee, within thirty
(30) days after Mortgagee receives title to the Demised Premises, to execute an
instrument in confirmation of the foregoing provisions, satisfactory to
Mortgagee, in which Tenant shall acknowledge such attornment and shall set forth
the terms and conditions of its tenancy.
4. In the event of a foreclosure sale of the Demised Premises under any
present or future lien against Landlord's interest in the Demised Premises, or
in the event that Landlord conveys its interest in the Demised Premises, or in
the event that Landlord's interest in the Demised Premises passes to any other
person, firm or corporation by operation of law or any other means then in any
of said events, Tenant shall promptly attorn to the purchaser at such
foreclosure sale, or to the grantee of the Demised Premises from Landlord or to
such other successor to Landlord's interest in the Demised Premises, under all
of the terms, covenants and conditions of the Lease; and, the purchaser or other
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<PAGE>
successor entitled to the Demised Premises shall not disturb Tenant in its
possession in the Demised Premises; provided, however, that at the time such
purchaser or other successor to Landlord comes into possession of the Demised
Premises, Tenant is not in default under the Lease and that no event has
occurred and no condition then exists which, after the passage of time (after
notice required by the Lease, if any) would entitle Landlord to terminate the
Lease under its terms or would cause, without any further action of such
Landlord, the termination of the Lease, or would entitle such Landlord to
dispossess Tenant from the Demised Premises. Said attornment is to be effective
and self-operative without the execution of any further instruments on the part
of any of the parties hereto immediately upon the successor to Landlord's estate
succeeding to the interest of Landlord in the Demised Premises. Tenant agrees,
however, upon the election of and written demand by any such successor to
Landlord's interest within thirty (30) days after said successor to Landlord's
interest receives title to the Demised Premises, to execute an instrument in
confirmation of the foregoing provisions, satisfactory to any such successor to
Landlord's interest, in which Tenant shall acknowledge such attornment and shall
set forth the terms and conditions of its tenancy.
5. Tenant agrees with Mortgagee that if Mortgagee shall succeed to the
interest of Landlord under the Lease, Mortgagee shall not be:
(a) liable for any action or omission of any prior Landlord under the
Lease; or
(b) subject to any offsets or defenses which Tenant might have against
any prior Landlord; or
(c) bound by any rent or additional rental which Tenant might have
paid for more than the current month to any prior Landlord; or
(d) bound by any security deposit which Tenant may have paid to any
prior Landlord, unless such deposit is in an escrow fund available to
Mortgagee; or
(e) bound by any amendment or modification of the Lease made without
prior written consent to Mortgagee.
Tenant further agrees with Mortgagee that Tenant will not voluntarily
subordinate the Lease to any lien or encumbrance without Mortgagee's written
consent.
6. In the event that Landlord shall default in the performance or
observance of any of the terms, conditions or agreements in the Lease, Tenant
shall give written notice thereof to Mortgagee and Mortgagee shall have the
right (but not the obligation) to cure such default. Tenant shall not take any
action in order to terminate, rescind, or avoid the Lease or to withhold any
rental thereunder for a period of ten (10) days after Mortgagee's receipt of
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<PAGE>
such written notice of default with respect to any such default capable of being
cured by the payment of money and for a period of thirty (30) days after receipt
of such written notice thereof by Mortgagee with respect to any other such
default (provided that, in the case of any default which cannot be cured by the
payment of money and cannot with diligence be cured within such thirty (30) day
period, if Mortgagee shall proceed promptly to cure the same and thereafter
shall prosecute the curing of such default with diligence and continuity, then
the time within such default may be cured shall be extended for such period as
may be necessary to complete the curing of the same with diligence and
continuity).
7. Landlord shall not further assign Landlord's interest in the Lease,
unless the grantee or assignee shall acknowledge in writing to Mortgagee that
the conveyance or assignment is accepted subject to the Lease and the Mortgage.
Landlord further agrees that in the event said interest in the Demised Premises
or said interest in the Lease passes to any other person, firm or corporation,
by operation of law or by any other means, such passage of title shall be
subject to the Lease.
8. This Agreement shall bind and inure to he benefit of the parties hereto,
their successors and assigns. As used herein, the term "Tenant" shall include
Tenant, its successors and assigns; the words "foreclosure" and "foreclosure
sale" as used herein shall be deemed to include the acquisition of Landlord's
interest in the Demised Premises by voluntary deed (or assignment) in lieu of
foreclosure; and the word "Mortgagee" shall include Mortgagee herein
specifically named and any of its successors and assigns, including anyone who
shall have succeeded to Landlord's interest in the Demised Premises, by,
through, or under foreclosure of the Mortgage.
9. This Agreement shall not be modified or amended except in writing signed
by all parties hereto.
10. The use of the neuter gender in this Agreement shall be deemed to
include any other gender, and words in the singular number shall be held to
include the plural, when the context requires.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have placed their hands and seals
the day and year first above written.
Signed, sealed and delivered TENANT:
in the presence of:
a __________________________ corporation
---------------------- By:_____________________________________
Unofficial Witness
Name/Title:_____________________________
----------------------
Notary
(affix Notarial Seal and date
of commission expiration) Attest: ________________________________
Name/Title: ____________________________
(Affix Corporate Seal)
________________________________________
a __________________________ partnership
By:_______________________________(Seal)
As its general partner
By:_______________________________(Seal)
As its general partner
__________________________________(Seal)
an individual
Signed, sealed and delivered LANDLORD:
in the presence of:
__________________________ an individual
---------------------- __________________________________(Seal)
Unofficial Witness
Name/Title:_____________________________
----------------------
Notary
________________________________________
(affix Notarial Seal and date
of commission expiration) a __________________________ partnership
By:_______________________________(Seal)
As its general partner
By:_______________________________(Seal)
As its general partner
Signed, sealed and delivered MORTGAGEE:
in the presence of:
a __________________________ corporation
---------------------- By:_____________________________________
Unofficial Witness
Name/Title:_____________________________
----------------------
Notary
(affix Notarial Seal and date
of commission expiration) Attest: ________________________________
Name/Title: ____________________________
5
<PAGE>
EXHIBIT "G"
RULES AND REGULATIONS
INSERT FROM FILE
<PAGE>
EXHIBIT "H"
DELIVERY OF POSSESSION DATE CERTIFICATE
LANDLORD:
TENANT:
PROJECT:
LEASE DATE:
PREMISES NUMBER:
SQUARE FOOTAGE:
DELIVERY OF POSSESSION DATE:
Landlord and Tenant acknowledge and agree that the Leased Premises
described in the above referenced Lease have been delivered to Tenant for the
performance of Tenant's Work (as said term is defined in the Lease) on Delivery
of Possession Date noted above.
Tenant acknowledges that Tenant has received access to the above-referenced
space. Tenant understands that Tenant may not begin any construction in the
Leased Premises until Tenant has satisfied the insurance and other requirements
as referenced in the Lease.
Tenant further acknowledges that all of the landlord's Work, pursuant to
said Lease, has been completed except as follows:
Tenant acknowledges and agrees that all utilities will be transferred
within five (5) working days form date of possession to avoid disconnection of
service.
LANDLORD: TENANT:
----------------------------------- ----------------------------------------
Name: Name:
----------------------------------- ----------------------------------------
Title: Title:
<PAGE>
EXHIBIT "I"
LEASE TERM DECLARATION
LANDLORD:
TENANT:
PROPERTY:
LEASE DATE:
PREMISES NUMBER:
SQUARE FOOTAGE:
Landlord and Tenant acknowledge and agree that Commencement Date of the
above referenced Lease is ________________ and the Termination Date of the Lease
is _____________.
LANDLORD: TENANT:
----------------------------------- ----------------------------------------
Name: Name:
----------------------------------- ----------------------------------------
Title: Title:
<PAGE>
EXHIBIT "J"
CONSTRUCTION
(Not applicable)
<PAGE>
EXHIBIT "K"
GUARANTY OF LEASE
LEASE DATE:
---------------------------------------------------------------------
LANDLORD: NORO-BROADVIEW HOLDING COMPANY, B.V.
----------------------------------------------------------------------
TENANT: ABSOLUTE CARE, INC.
-------------------------------------------------------------------------
GUARANTOR(S): AVESIS INCORPORATED
-------------------------------------------------------------------
SPECIALTY MALL: LINDBERGH PLAZA
------------------------------------------------------------------
FOR VALUE RECEIVED, and in consideration of the sum of $1.00 in hand paid
and of and as an inducement for the execution and delivery of the Lease referred
to above between Landlord and Tenant, the undersigned Guarantor(s) hereby
jointly and severally guarantee to Landlord the full and prompt payment of all
rent, including fixed rent and any contingent or percentage or other rent, and
any and all other sums and charges payable by Tenant under the Lease, and the
full and timely performance and observance of all the covenants, terms and
conditions and agreements in the Lease to be performed and observed by the
Tenant. Guarantor(s) hereby covenant and agree that if default shall at any time
be made by the Tenant in the payment of any such rent or any other sums or
charges, or in the performance and observance of any of the covenants, terms,
conditions or agreements in the Lease, the Guarantor(s) will promptly pay such
rent and other sums and charges to the Landlord, and perform and fulfill all of
the terms, covenants, conditions and agreements, and will pay the Landlord all
damages and expenses, including attorneys' fees, that may arise in consequence
of any default by the Tenant under the Lease or by the enforcement of this
Guaranty.
This Guaranty is an absolute and unconditional guaranty of payment and of
performance. It shall be enforceable against the Guarantor(s), jointly or
severally, without the necessity of any suit or proceedings on the Landlord's
part of any kind or nature whatsoever against the Tenant and without the
necessity of any notice of non-payment, non-performance, non-observance,
acceptance of this guaranty, or of any other notice or demand to which the
Guarantor(s) hereby expressly waive. The Guarantor(s) hereby expressly agree
that the validity of this Guaranty and the obligations of the Guarantor(s)
hereunder shall in no way be terminated, affected, diminished or impaired by
reason of the assertion or failure to assert by the Landlord against the Tenant
any of the rights and remedies available to the Landlord or by relief of Tenant
from any of the Tenant's obligations under this Lease by the rejection of the
Lease in connection with proceedings under the Bankruptcy laws now or hereafter
in effect or otherwise.
This Guaranty shall be a continuing guaranty and the liability of the
Guarantor(s) hereunder shall in no way be affected, modified or diminished by
reason of any assignment, renewal, modification of the Lease or by reason of any
modification or waiver of or change in any of the terms, covenants, conditions,
or provisions of the Lease, or by reason of any extension of time that may be
granted by the Landlord to the Tenant or by reason of a change for different use
of the Demised Premises or by reason of any dealings or transactions or matters
or things occurring between the Landlord and the Tenant, whether or not the
Guarantor(s) have knowledge or notice thereof. Guarantor(s) shall not assign
this Guaranty without the prior written consent of Landlord.
The assignment by Landlord of this Lease and/or the rents and other
receipts thereof made either with or without the Guarantor's knowledge or notice
shall in no manner whatsoever release the Guarantor(s) from any liability as
Guarantor(s). This Guaranty may be assigned by the Landlord.
All the Landlord's rights and remedies under the said Lease or under this
Guaranty are intended to be distinct, separate and cumulative and no such right
and remedy therein or herein mentioned is intended to be an exclusion or a
waiver of any of the others.
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This Guaranty shall be binding upon the Landlord and Tenant and their
respective successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Guaranty of Lease as
of the 3rd day of August, 2000.
GUARANTOR (S)
AVESIS INCORPORATED
/s/ Alan S. Cohn
----------------------------------------
Attest: /s/ Alan S. Cohn
--------------------------------
Title: CEO
---------------------------------
{AFFIX CORPORATE SEAL}
