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HomeMy WebLinkAboutATLANTA GAS LIGHT COMPANY LEASE AGREEMENT ,. '. . LEASE AGREEMENT THIS LEASE AGREEMENT is made and entered into as of the J2 day of December, 2007, by and between CITY OF AUGUSTA, GEORGIA, a municipal corporation, as Landlord, and A TLANT A GAS LIGHT COMPANY, a Georgia corporation, as Tenant. W!TNE~~ET H: 1. Definitions. For purposes of this Lease, and in addition to the terms defined elsewhere in this Lease, the following terms shall have the following meanings: "Additional Rent" shall mean all amounts required to be paid by Tenant under this Lease, to Landlord or any other Person, other then Base Rent. "Award" shall mean any amounts paid, recovered or recoverable as damages, compensation or proceeds by reason of any Taking or on account of a Taking, including all amounts paid pursuant to any agreement which has been made in settlement or under threat of any such action or proceeding, less the actual and reasonable costs and expenses incurred in collecting such amounts. "Base Rent" shall mean the rental specified and provided for in Section 4. "Casualty" shall mean damage or destruction of the Premises, or any portion thereof, by fire or other casualty. "Commencement Date" shall mean the date Closing (as defined in the Purchase and Sale Agreement) occurs. "Date of Casualty" shall mean the date on which a Casualty occurs. "Date of Taking" shall mean the earlier of: (i) the date upon which title to or an interest in the Premises or portion thereof subject to a Taking is vested in the condemning authority; or (ii) the date upon which possession of the Premises or portion thereof is taken by the condemning authority. "Date of this Agreement" shall mean the later of the date of Landlord's or Tenant's execution of this Lease, as set forth below their respective executions hereof. "Environmental Laws" shall mean any federal, state or local statute, law, ordinance, code, rule, regulation, order or decree, regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Materials as may now or at any time hereafter be in effect, including, without limitation, the following, as the same may be amended or replaced from time to time, and all regulations promulgated thereunder or in connection therewith: the Super Fund Amendments and Reauthorization Act of 1986 ("SARA"); the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"); the Clean Air Act ("CAA"); the Clean Water Act ("CW A"); the Toxic ATLLlBOI 1611170.7 Substances Control Act ("TSCA"); the Solid Waste Disposal Act ("SWDA"), as amended by the Resource Conversation and Recovery Act ("ReRA"); the Hazardous Waste Management System; and the Occupational Safety and Health Act of 1970 ("OSHA"); the Georgia Hazardous Site Response Act ("HSRA"); the Georgia Underground Storage Tank Act; the Georgia Comprehensive Solid Waste Management Act; and the Georgia Hazardous Waste Management Act. "Event of Default" shall mean the events so described in Section 17. "Expiration Date" shall have the meaning set forth in Section 3. "Governmental Authority" means any federal, state, county or municipal governmental authority, including all executive, legislative, judicial and administrative bodies thereof. "Governmental Requirement" shall mean all constitutions, statutes, laws, ordinances, codes, regulations, resolutions, rules, requirements and directives of any Governmental Authority, and all decisions, judgments, writs, injunctions, orders, decrees or demands of Governmental Authorities construing any of the foregoing (but excluding those which, by their terms, do not impose any obligation upon Tenant, Landlord or the Premises). "Hazardous Materials" means and includes petroleum products, flammable explosives, radioactive materials, asbestos or any material containing asbestos, polychlorinated biphenyls, or any hazardous, toxic or dangerous waste, substance or material defined as such or defined as a hazardous substance or any similar term, by, in or for the purposes of the Environmental Laws, including, without limitation Section 101(14) ofCERCLA. , "Improvements" shall mean and shall include any and all buildings, structures, fixtures, driveways, parking areas, paved areas, fences and other improvements located on, or attached or affixed to, the Land, and any and all modifications alterations and replacements thereof, substitutions therefor and additions thereto. The term improvements does not include the Land. "Land" shall mean that certain tract or parcel of land lying and being in Augusta, Georgia, as more particularly described on Exhibit "A" attached hereto, together with all easements and rights appurtenant thereto, and Landlord's right, title and interest in and to all streets, public or private alleys and public or private ways adjoining or crossing said land. "Landlord" shall mean the City of Augusta, Georgia, a Georgia municipal corporation, and shall include the legal representatives, successors and assigns of Landlord. "Landlord Default" shall mean the events so described in Section 18. "Lease" shall mean this Lease Agreement, together with any and all exhibits and attachments which may be part of this Lease Agreement. 2 ATLLlBOI 1611170.7 " "Mortgage" shall mean any mortgage, deed to secure debt, deed of trust, trust deed or other conveyance of, or lien or encumbrance against, the Premises as security for any debt, whether now existing or hereafter arising or created. "Mortgages" shall mean more than one "Mortgage". "Mortgagee" shall mean the holder of any Mortgage, together with the heirs, legal representatives, successors, transferees and assigns of the holder. "Mortgagees" shall mean more than one "Mortgagee". "Person" shall mean an individual, partnership, joint venture, association, corporation, trust or any other legal entity. "Premises" shall mean the Land and the Improvements. "Proceeds" shall mean the amounts recovered or recoverable as compensation or damages for damage to the Premises on account of a Casualty, including insurance payments, less the actual and reasonable costs and expenses incurred in collecting such amounts. "Purchase and Sale Agreement" shall mean that certain Purchase and Sale Agreement by and between Landlord, as purchaser, and Tenant, as Seller, dated November _, 2007, pursuant to which, immediately prior to entering into this Lease, Tenant conveyed the Premises to Landlord. "Release" shall have the meaning given such term, or any similar term, in the Environmental Laws, including, without limitation Section 101 (22) of CERCLA. "Rent" shall mean Base Rent and Additional Rent, or either of them. "Restoration" shall mean the restoration of the Premises after any Casualty or Taking, as nearly as possible to their condition prior to such Casualty or Taking. "State" shall mean the state in which the Premises are located. "Substantial Portion of the Premises", in respect of a Casualty, shall mean a Casualty affecting so much of the Premises that in Tenant's reasonable and good faith opinion, leaves the undamaged portion unsuitable for the continued feasible and economic operation of the Premises by Tenant for substantially the same purposes and to the extent as existed immediately prior to such Casualty. "Substantial Portion of the Premises", in respect of a Taking, shall mean a Taking affecting so much of the Premises as, when taken, in Tenant's reasonable and good faith opinion, leaves the untaken portion unsuitable for the continued feasible and economic operation of the Premises by Tenant for substantially the same purposes and to the extent as existed immediately prior to such Taking. 3 ATLLIBOI 1611170.7 "Taking" shall mean any condemnation or exercise of the power of eminent domain by any public authority vested with such power, or any taking in any other manner for public use, including a private purchase, in lieu of condemnation, by a public authority vested with the power of eminent domain. "Tenant" shall mean Atlanta Gas Light Company, and shall include the legal representatives, successors and assigns of Tenant permitted under this Lease. "Tenant Personalty" shall mean the trade fixtures, equipment and other items of personal property (whether or not attached to the Improvements) that are owned by Tenant and used in the operation of the business conducted on the Premises, including, without limitation, signage and telecommunications equipment of Tenant. Nevertheless, building fixtures which are not trade fixtures and the exterior gas lights are not part of the Tenant Personalty. "Term" shall have the meaning set forth in Section 3. 2. Premises; Representations, Warranties and Covenants; Ouiet Eniovment. (a) In consideration of the agreements, terms, covenants, conditions, requirements, provisions and restrictions to be kept, observed, performed, satisfied and complied with by Tenant, and for the Rent herein provided, and upon the terms and conditions herein stated, Landlord hereby lets, leases and demises unto Tenant, and Tenant hereby leases, takes and accepts from Landlord, the Premises. (b) Landlord represents, warrants and covenants to and with Tenant, knowing that Tenant is relying on each such representation, warranty and covenant, that: (i) Landlord is a municipal corporation, duly organized, validly existing and in good standing under the laws of the State of Georgia; (ii) There are no actions, suits or proceedings pending or, to the best of Landlord's actual knowledge, threatened against, by or affecting Landlord which affect title to the Premises or which question the validity or enforceability of this Lease or of any action taken by Landlord under this Lecise, in any court or before any governmental authority, domestic or foreign. (iii) The execution of and entry into this Lease, and the performance by Landlord of Landlord's duties and obligations under this Lease are consistent with and not in violation of, and will not create any adverse condition under, any contract, agreement or other instrument to which Landlord is a party, any judicial order or judgment of any nature by which Landlord is bound. (iv) This Lease constitutes the valid and binding obligation of Landlord, and except as may be limited by law or equity, enforceable in accordance with its terms; 4 ATLLIBOI 1611170.7 " (v) All action has been taken by Landlord authorizing and approving the execution of and entry into this Lease and the performance by Landlord of Landlord's duties and obligations under this Lease. (c) Tenant represents, warrants and covenants to and with Landlord, knowing that Landlord is relying on each such representation, warranty and covenant, that: (i) Tenant is a corporation, duly organized, validly existing and in good standing under the laws of the State of Georgia. (ii) There are no actions, suits or proceedings pending or threatened against, by or affecting Tenant which question the validity or enforceability of this Lease or of any action taken by Tenant under this Lease, in any court or before any governmental authority, domestic or foreign. (iii) The execution of and entry into this Lease, and the performance by Tenant of Tenant's duties and obligations under this Lease are consistent with and not in violation of, and will not create any adverse condition under, any contract, agreement or other instrument to which Tenant is a party, any judicial order or judgment of any nature by which Tenant is bound, or the organizational documents of Ten ant. (iv) This Lease constitutes the valid and binding obligation of Tenant, enforceable in accordance with its terms. (v) All corporate action has been taken by Tenant authorizing and approving the execution of and entry into this Lease and the performance by Tenant of Tenant's duties and obligations under this Lease. (d) Landlord warrants and covenants that, subject to the terms and conditions of this Lease, Tenant shall peaceably and quietly hold and enjoy the Premises during the Term without hindrance or interruption so long as Tenant keeps, observes, performs, satisfies and complies with all of the agreements, terms, covenants and conditions, requirements, provisions and restrictions of this Lease to be kept, observed, performed, satisfied and complied with by Tenant under this Lease and pays all Base Rent and Additional Rent required to be paid by Tenant under this Lease. 3. Term; Option to Terminate. (a) The term of this Lease (the "Initial Term") shall commence on the Commencement Date and expire at midnight on June 30, 2008, unless sooner terminated or extended as provided in this Lease (the "Expiration Date"). (b) Notwithstanding anything contained in this Lease to the contrary, Tenant may, upon not less than thirty (30) days prior written notice, terminate this Lease effective as of the date specified in such notice. In the event Tenant delivers such termination notice to 5 ATLLIBOI 1611170.7 Landlord, then the Term of this Lease shall expire on, and the Expiration Date shall be, the date specified in such notice to Landlord. (c) Notwithstanding anything contained in this Lease to the contrary, Tenant may, upon prior written notice sent not fewer than thirty (30) days before the Expiration Date, extend the term of this Lease until September 30, 2008 (the "Extension Term"; the Initial Term, together with the Extension Term, if exercised, as the "Term"). 4. Base Rent. (a) Tenant shall pay to Landlord in lawful money of the United States, at the address specified in this Lease for the giving of notices to Landlord or at such other place as Landlord may specify, without any prior notice or demand, and without setoff or deduction except as specifically provided herein, monthly Base Rent which shall be, for the Initial Term, Six Thousand Five Hundred and No/lOO Dollars ($6,500.00), and for the Extension Term, Nine Thousand and No/I00 Dollars ($9,000.00), prorated for any partial month. The Base Rent shall be due and payable in advance, beginning on the Commencement Date and continuing on the first (1 st) day of each succeeding month thereafter throughout the Term. Notwithstanding the foregoing, all Base Rent shall be abated for the period of time from the Commencement Date through and including December 31, 2007. (b) If any installment of Base Rent is not paid within fifteen (15) days of the date due, Tenant shall pay to Landlord a late charge of four percent (4%) of such installment of Base Rent. (c) Upon receipt of written notice from Landlord within eight (8) months after the date of the expiration or earlier termination of this Lease together with a copy of the tax bills for the applicable tax periods, Tenant shall pay to Landlord the ad valorem taxes assessed against the Premises allocable to the Term. 5. Use. Tenant may use and operate the Premises for any and all lawful business purposes. Tenant shall not use or occupy the Premises, or permit the Premises to be used or occupied for any unlawful purpose or in material violation of any Governmental Requirement or any restrictive covenant contained in the public records on the date hereof. 6. Utilities. Tenant shall make all arrangements for, and payor cause to be paid when due all charges for, connection of water, sanitary and storm sewer, gas, electricity and telephone services to the Improvements. 7. Landlord Work, (a) Repairs by Landlord (i) Landlord shall perform all maintenance and repair of the roof, footings, foundation, interior load-bearing and exterior walls and structural 6 ATLLlBOI 1611170.7 components of the Premises, and shall make all necessary replacements to such elements of the Improvements except to the extent caused by the negligence or willful misconduct of Tenant. Landlord shall perform all maintenance and repair of the water, sewer, storm sewer, electrical and telephone lines on the Premises that are outside of the buildings on the Premises and shall make all necessary replacements thereof except to the extent caused by the negligence or willful misconduct of Tenant. (ii) Tenant may give Landlord written notice if Tenant believes that there is a condition that requires maintenance, repair or replacement that is the obligation of Landlord pursuant to Section 7(a)(i). Notwithstanding anything to the contrary set forth in this Lease, if Tenant gives written notice to Landlord of the need for any such maintenance, repair or replacement and Landlord fails to commence such maintenance, repair or replacement within fifteen (15) days (except in the event the condition requiring maintenance, repair or replacement involves present or imminent danger of injury to persons or property), and thereafter fails to commence such maintenance, repair or replacement within three (3) business days after Tenant gives Landlord further written notice thereof and of Tenant's intention to undertake such maintenance, repair or replacement, then Tenant may proceed to undertake such maintenance, repair or replacement; provided, however, that such further notice to Landlord shall not be required if Tenant's initial notice identifies the condition requiring maintenance, repair or replacement as one that involves present or imminent danger of injury to persons or damage to property. In addition and notwithstanding anything to the contrary set forth in this Lease, if Landlord abandons or fails to diligently complete such maintenance, repair or replacement and thereafter fails to diligently complete such maintenance, repair or replacement within three (3) business days after Tenant gives Landlord further written notice thereof and of Tenant's intention to undertake such maintenance, repair or replacement, then Tenant may proceed to undertake such maintenance, repair or replacement; provided, however, that such further notice to Landlord shall not be required if Tenant's initial notice identifies the condition requiring maintenance, repair or replacement as one that involves present or imminent danger of injury to persons or damage to property. All reasonable out of pocket costs and expenses incurred by Tenant in exercising Tenant's rights under this Section 7(a)(ii), and shall bear interest at the rate of twelve (12%) per annum from the date of payment by Tenant and shall be payable by Landlord to Tenant upon demand, which shall be accompanied by an invoice of such costs and expenses and reasonable documentation substantiating such costs and expenses. If Landlord fails to pay any such amount within ten (10) days after demand therefor, Tenant shall have the right to set off against, and deduct from, Base Rent payable hereunder such amounts owing by Landlord to Tenant. (b) Landlord's Renovations to the Property. Tenant acknowledges and agrees that during Tenant's tenancy, Landlord shall have right to perform certain repairs and 7 ATLLIBOI 1611170.7 . . renovations ("Landlord's Renovations") to the Premises, subject to the following terms and conditions. (i) No Landlord's Renovations shall interfere with the daily operations and use ofthe Premises by Tenant. (ii) All Landlord's Renovations shall be supervised at all times by a designated and qualified superintendent of the Landlord to ensure that the Landlord's Renovations are conducted in a safe manner, in compliance with all laws and ordinances and without interference to Tenant. (iii) In no event shall Landlord's Renovations affect the utility services or the structural integrity of the Premises. (iv) Prior to commencing any Landlord's Renovations, Landlord shall meet with Tenant's facilities management personnel and local management and provide a detailed schedule and scope of work to ensure that Tenant's use of the Premises can be coordinated with Landlord's Renovations. Tenant's Base Rent obligations hereunder shall be abated in the event that Landlord fails to adhere to the preceding Landlord's Renovation provisions. 8. Repairs bv Tenant. Except to the extent of Landlord's duties and obligations pursuant to Section 7(a): (i) Tenant shall perform all maintenance and repair of the Premises; and (ii) on the Expiration Date, or upon the earlier termination of the Term, Tenant shall leave the Premises in a condition at least as good as the condition the Premises were in on the Commencement Date, excepting only ordinary wear and tear, and damage by Casualty. 9. Casualtv. (a) If there occurs a Casualty affecting a Substantial Portion of the Premises, Tenant shall have the right, at is option, to terminate this Lease by giving written notice to Landlord of such termination within thirty (30) days after the Date of Casualty, in which event this Lease shall terminate, and the Term shall expire, on the date of such notice with the same effect as if the date of such notice were the Expiration Date, and all Base Rent and Additional Rent shall be apportioned and paid through and including the date of such notice. (b) If there occurs a Casualty affecting a Substantial Portion of the Premises and Tenant does not terminate this Lease pursuant to Section 9(a), or if there occurs a Casualty affecting less than a Substantial Portion of the Premises, then this Lease and all duties and obligations of Tenant under this Lease shall remain unmodified, unaffected and in full force and effect, including the payment of Rent in which event Tenant shall promptly proceed to repair, restore, rebuild, reconstruct or replace the damaged or destroyed portion of the Premises to a condition at least as good as the condition which existed immediately prior to the Casualty. Tenant shall be entitled to apply the Proceeds to the Restoration of the Premises (it being agreed that Tenant performing such work being conditioned upon the Proceeds being available to Tenant for use solely for the payment of the cost thereof, except if Tenant self insures such Casualty 8 ATLLlBOI 1611170.7 pursuant to Section 11, then Tenant's obligation to perform such work will not be conditioned upon receipt of the insurance proceeds). Any portion of the Proceeds remaining after final payment has been made for such work shall be retained by and be the property of Tenant. If the cost of such work exceeds the Proceeds, Tenant shall pay the excess cost. 10. Condemnation. (a) If there occurs a Taking of all of the Premises, other than a Taking for temporary use, then this Lease shall automatically terminate, and the Term shall automatically expire, on the date when such possession must be surrendered, as if such date were the Expiration Date, and all Base Rent and Additional Rent shall be apportioned and paid through and including the Date of Taking. (b) If there occurs a Taking of less than all, but a Substantial Portion of the Premises, other than a Taking for temporary use, then Tenant shall have the right, at its option, to terminate this Lease by giving written notice to Landlord of such termination within thirty (30) days after the Date of Taking, in which event this Lease shall terminate, and the Term shall expire, on the date of such notice, as if such date were the Expiration Date, and all Base Rent and Additional Rent shall be apportioned and paid through and including the date of such notice; provided, however, that, commencing with the Date of Taking, Rent shall abate pro rata to the extent that any portion of the Premises is not reasonably usable by Tenant in the ordinary conduct of its business through the date of such notice, except to the extent Tenant receives an award therefor as provided in Section 10(e). (c) If there occurs a Taking of less than a Substantial Portion of the Premises, then this Lease and all duties and obligations of Tenant under this Lease shall remain unmodified, unaffected and in full force and effect; provided, however, that the Base Rent payable after the Taking shall be reduced to an amount which bears the same ratio to the Base Rent payable immediately prior to the Taking as the rental value of the Premises after Taking bears to the rental value of the Premises immediately prior to the Taking. Tenant shall promptly proceed with the Restoration of the Premises (to the extent possible) and Landlord shall make the Award received by Landlord available to Tenant for the Restoration (it being agreed that Tenant performing such Restoration being conditioned upon Landlord depositing the A ward in an account available to Tenant for use solely for the payment of the cost of the Restoration). If the cost of the Restoration exceeds the A ward recovered by Landlord, then Landlord shall pay the excess cost. (d) If there occurs a Taking of the Premises, or any portion thereof, for temporary use, then this Lease shall remain in full force and effect for the remainder of the Term, provided, however, that during such time as Tenant shall be out of possession of the Premises by reason of such Taking, Rent shall abate. (e) Except as expressly provided in Section 10(d) and as hereinafter set forth in this Section 10(e), Landlord shall be entitled to all Awards payable by reason of any Taking, and Tenant shall not be entitled to any portion of, and shall have no claim for, and hereby transfers, assigns, conveys and sets over unto Landlord all of its right, title and interest, if any, in 9 ATLLIBOI 1611170.7 " or to, any A ward payable by reason of any Taking; provided, however, that Tenant shall have the right to pursue and retain an Award for (i) business interruption or inconvenience, (ii) moving expenses, (iii) the value of any Tenant Personalty subject to any Taking, and (iv) the unamortized portion of the cost incurred by Tenant for Improvements. 11. Insurance. (a) Tenant shall procure, and shall maintain in full force and effect at all times during the Term, the following insurance, paying as the same become due all premiums therefor: (i) insurance in an amount not less than full replacement cost of the Improvements, as reasonably determined by Landlord from time to time, against direct and indirect loss or damage by fire and all other casualties and risks covered under "All Risk" insurance ("Special Extended Coverage Endorsement"); (ii) commercial general public liability Insurance InSUrIng against all liability of Tenant and Tenant's officers, employees, agents, sublessees, assignees, designees, delegees, licensees and invitees arising out of, by reason of or in connection with the condition, use, occupancy or possession of, or any conduct or activity on, the Premises, with single limit of liability limit of not less than $1,000,000 and general aggregate limits of not less than $3,000,000.00 for each policy year; (iii) insurance in an amount not less than full replacement cost of all Tenant Personalty located on the Premises, against direct and indirect loss or damage by fire and all other casualties and risks covered under "All Risk" insurance ("Special Extended Coverage Endorsement"); and (iv) worker's compensation Insurance as required by any Governmental Requirement. (b) Tenant shall pay all premiums for the insurance coverage which Tenant is required to procure and maintain under this Lease. Each insurance policy: (i) may be subject to reasonable deductible amounts; (ii) shall name Landlord, Tenant and any Mortgagee as insured parties, as their respective interests may appear; (iii) with respect to the insurance set forth in Section 11(a)(i) and (ii) above, shall provide that the policy cannot be canceled as to Landlord or any Mortgagee except after the insurer gives Landlord and any Mortgagee thirty (30) days written notice of cancellation; (iv) with respect to policies obtained by Tenant, such policies shall not be subject to invalidation as to Landlord or any Mortgagee by reason of any act or omission of Tenant or any of Tenant's officers, employees or agents; and (v) shall contain a provision to the effect that the policy shall not be invalidated, and shall remain in full force and effect, if any insured waives in writing prior to a loss any or all rights of recovery against any party for loss occurring to property covered by that policy, and a provision whereby the insurer itself waives any claims by way of subrogation against Landlord or Tenant, as appropriate, and any Mortgagee. All policies of insurance provided for hereunder shall be issued in a form reasonably acceptable to Landlord by insurance companies with a rating of not less than "A-" and a financial size of not less than Class VII, in the most current available "Best's Key Rating Guide" and licensed to do business in the 10 ATLLIBOl 1611170.7 state in which the Premises located. Furthermore, all such insurance shall be written on an occurrence basis (and not a claims made basis). Immediately upon the issuance of each policy required under this Lease, Tenant and Landlord shall deliver a certificate evidencing the existence of such policy to the other and any Mortgagee, and shall thereafter deliver certificates evidencing the renewal thereof to the extent available at least ten (10) days prior to the expiration thereof. Any insurance that Landlord or Tenant is required to obtain pursuant to this Lease may be carried under a "blanket" policy or policies covering other properties or liabilities of Landlord or Tenant, provided that such "blanket" policy or policies otherwise comply with the provisions of this Section 11. (c) Tenant may elect at any time during the Term not to carry the insurance required hereunder with a third party insurer and, instead "self-insure" against such risks. If Tenant elects to self-insure in whole or in part, Landlord and Landlord's Mortgagee shall be entitled to the same benefits (A) each would have enjoyed had insurance covering such loss in full been in effect, (B) as if a waiver of subrogation/waiver of right of recovery clause had been in effect and (C) as if Landlord and Landlord's Mortgagees had been named on insurance covering the loss in full each as an additional insured for the purpose of preventing any subrogation claim. (d) In the event of any Casualty loss, Tenant shall give Landlord prompt written notice thereof, and Tenant shall adjust, collect and compromise any and all claims under insurance maintained under Sections 11(a)(i), (Hi) and (iv) unless Tenant terminates this Lease pursuant to Section 9, in which event, Landlord or, if applicable Landlord's lender shall be entitled to all Proceeds. (e) Tenant and Landlord shall require all general contractors hired by them to perform work on the Premises to obtain and keep in force commercial general public liability insurance insuring against all liability of such general contractor and such general contractor's officers, employees, and agent with single limit coverage of $1,000,000.00 and general aggregate for $2,000,000.00 for each policy year. 12. Waiver of Subroe:ation: Indemnities. (a) Landlord and Tenant hereby waive any and all rights of recovery, claim, action or cause of action against each other, their respective agents, officers and employees, for any loss or damage that may occur to the Premises, or to any other property, whether real, personal or mixed, located on or in the Premises, by reason of fire, the elements, or any other cause insured against, or required to be insured against, under the terms of policies of insurance maintained, or required to be maintained, for the Premises or such other property, by Landlord or Tenant (as the case may be) under the terms of this Lease, regardless of cause or origin, including negligence of the parties hereto, their respective agents and employees. (b) Subject to the provisions of Section 12(a), Tenant shall pay, and shall protect, indemnify and hold harmless Landlord and Landlord's officers, employees and agents from, against and in respect of, all liabilities, damages, losses, costs, expenses (including all attorneys' fees and expenses of Landlord), causes of action, suits, claims, demands and 11 ATLLlBOI 1611170.7 judgments of any nature whatsoever arising out of, by reason of or in connection with the following, except to the extent within the scope of the indemnity of Tenant by Landlord pursuant to Section 12(c): (i) injury to or the death of persons or damage to property occurring during the Term (A) on the Premises, or (B) arising out of, by reason of or in connection with the use, non- use or occupancy of the Premises during the Term, or (C) resulting from the condition of the Premises during the Term, or (ii) the violation of any Governmental Requirement affecting the Premises or the use or occupancy thereof, (Hi) the failure of Tenant to perform its duties and obligations under this Lease. (c) Subject to the provisions of Section 12(a), Landlord shall pay, and shall protect, indemnify and hold harmless Tenant and Tenant's officers, employees and agents from, against and in respect of, all liabilities, damages, losses, costs, expenses (including all reasonable attorneys' fees and expenses of Tenant), causes of action, suits, claims, demands and judgments of any nature whatsoever arising out of, by reason of or in connection with the following: (i) injury to or the death of persons or damage to property to the extent caused by the negligence or willful misconduct of Landlord, its agents, contractors or employees; or (ii) the failure of Landlord to perform its duties and obligations under this Lease; or (Hi) the violation of any Governmental Requirement affecting the Premises or the use or occupancy thereof, the compliance with which is the duty and obligation of Landlord under this Lease. (d) Nothing contained in this Section 12 shall be deemed or construed to entitle any party indemnified in this Section 12 to indemnification against its sole negligence. The provisions of this Section 12 shall survive the Expiration Date, or any earlier termination of this Lease. 13. Subordination to Financin2. (a) Subject to the provisions of Section 13(b) and subject to such provisions being confirmed in the subordination, non-disturbance and attornment agreement to be entered into from time to time by Tenant, Landlord and any future Landlord, and the initial Mortgagee or any subsequent Mortgagee in substantially the form set forth in Exhibit "B" of this Lease, Tenant agrees that this Lease shall at all times be subject and subordinate to the lien or security title of any Mortgage, and Tenant agrees, upon request, to execute instruments as may be required to further effectuate or confirm such subordination. (b) Notwithstanding the provisions of Section 13(a), except as expressly provided in this Lease by reason of the occurrence of an Event of Default, Tenant's tenancy and Tenant's rights under this Lease shall not be disturbed, terminated or otherwise adversely affected, nor shall this Lease be affected, by any default under any Mortgage, and in the event of a foreclosure or other enforcement of any Mortgage, or sale in lieu thereof, the purchaser at such foreclosure sale shall be bound to Tenant for the Term as if such purchaser were the original landlord under this Lease, the rights of Tenant under this Lease shall expressly survive, and this Lease shall in all respects continue in full force and effect so long as no Event of Default has occurred and is continuing, provided, however, that notwithstanding anything to the contrary set forth in any Mortgage, all Mortgagees shall be obligated to make Proceeds and Awards available for Restoration in accordance with this Lease. 12 ATLLIBO\ \6\ J 170.7 (c) Notwithstanding the provisions of Section 13(a), any Mortgagee shall have the right, at its sole option, at any time, to subordinate and subject its Mortgage, in whole or in part, to this Lease by recording a unilateral declaration to such effect. (d) At any time prior to the expiration of the Term, Tenant agrees, at the election and upon demand of any owner of the Premises, or of a Mortgagee that has granted non- disturbance to Tenant pursuant to Section 13(a), to attorn, from time to time, to any such owner or Mortgagee, upon the terms and conditions of this Lease, for the remainder of the Term. The provisions of this Section 13( d) shall inure to the benefit of any such owner or Mortgagee, shall apply notwithstanding that, as a matter of law, this Lease may terminate upon the foreclosure of the Mortgage, shall be self-operative upon any such demand, and no further instrument shall be required to give effect to said provisions. (e) Each of Tenant, Landlord and any future Landlord, and the initial Mortgagee or any subsequent Mortgagee, upon request of the other, shall execute, from time to time, instruments in confirmation of the foregoing provisions of this Section 13, reasonably satisfactory to the requesting party. (f) If any Mortgagee provides Tenant with written notice of an address to send notices, then, as long as Mortgage of such Mortgagee remains outstanding and unsatisfied, Tenant will mail or deliver to such Mortgagee at the address provided to Tenant, a copy of all notices permitted or required to be given to Landlord by Tenant under and pursuant to the terms and provisions of this Lease. At any time before a termination of this Lease because of any default of Landlord, or within the time permitted Landlord for curing a default under this Lease as therein provided (but not less than thirty (30) days from the receipt of notice by Mortgagee), Mortgagee may, but shall have no obligation to do any act or thing required of Landlord by the terms of this Lease; and all payments so made and all things so done and performed by Mortgagee shall be effective to prevent this Lease from being terminated because of any default under this Lease. 14. Assignment and Subletting. Tenant shall not have the right to assign or sublet this Lease without Landlord's consent which shall not be unreasonably withheld, conditioned or delayed. 15. Surrender; Removal of Tenant Personalty; Holding Over. (a) Upon the expiration of the Term, or earlier termination of this Lease, Tenant shall peaceably and quietly leave, yield up and surrender to Landlord the Premises, in a condition that is in compliance with all of Tenant's duties and obligations under this Lease, excepting only ordinary wear and tear, and damage by Casualty. (b) Notwithstanding anything to the contrary set forth in this Lease, Tenant Personalty shall be and remain the property of Tenant, and Landlord hereby waives any landlord's lien and all rights of distraint, levy or any other right against or with respect to any Tenant Personalty. 13 ATLLlBOI 1611170.7 (c) On or before the Expiration Date or earlier termination of this Lease, Tenant may remove all Tenant Personalty which Tenant has installed or otherwise located on the Premises; provided, however, that Tenant shall promptly repair all damage to the Premises caused by such removal. If Tenant does not so remove all such Tenant Personalty on or before the Expiration Date, Landlord may notify Tenant to remove the personal property and to restore the Premises to their condition immediately preceding the time the property was installed or otherwise located on the Premises. If Tenant fails or refuses to remove all such personal property from the Premises, and to so restore the Premises, within fifteen (15) days after Landlord gives notice to do so, Landlord may at its option (i) remove and store all such personal property at Tenant's sole cost and expense; (ii) dispose of such personal property; or (iii) retain such personal property as Landlord's property. Upon request from Tenant, Landlord shall notify Tenant which option Landlord elected. (d) Notwithstanding any provision of this Lease to the contrary, Tenant shall have the right to hold over after the expiration of the Term for a period of not to exceed six (6) months upon the same terms and conditions of this Lease as in effect immediately prior to such expiration; provided, that, Tenant shall give Landlord not less than sixty (60) days prior written notice of its intent to so hold over. Any holding over by Tenant of the Premises (i) after the expiration or earlier termination of the Term (if Tenant has not exercised its hold over right), or (ii) after such hold over period (if Tenant has exercised its hold over right), shall operate and be construed as a tenancy from month to month only, at one hundred twenty percent (120%) of the Rent then in effect and otherwise upon the same terms and conditions as contained in this Lease, except that Tenant shall have no further right to renew or extend the Term and any such holdover period will be deemed to be within the Term for purposes of this Lease and the last day thereof will be deemed to be the Expiration Date. 16. Right of Entrv. Landlord and its authorized representatives shall have the right upon prior notice to enter the Premises during normal business hours or at any time if Tenant has vacated the Premises (and at all other times in the event of an emergency without prior notice): (a) for the purpose of inspecting the same or for the purpose of making repairs; and (b) for the purpose of showing the Premises to prospective purchasers, Mortgagees and tenants. No such entry shall constitute an eviction of Tenant, but any such entry shall be done by Landlord in such reasonable manner as to minimize any disruption of Tenant's business operation. Notwithstanding the above, Landlord may only enter the Premises when accompanied by a representative of Tenant (which Tenant agrees to make available to Landlord upon reasonable notice at all reasonable business hours), except when Landlord believes in good faith that there. is an emergency situation at the Premises. 17. Tenant Default. (a) Each of the following events shall constitute an Event of Default by Tenant under this Lease: 14 ATLLIBOI 1611170.7 (i) if Tenant shall fail to pay when due any Base Rent or Additional Rent and shall not cure such failure within ten (10) days after Tenant receives written notice thereof from Landlord; (ii) if Tenant shall violate or breach, or shall fail fully and completely to observe, keep, satisfy, perform and comply with, any agreement, term, covenant, condition, requirement, restriction or provision of this Lease, and shall not cure such failure within thirty (30) days after Tenant receives written notice thereof from Landlord, or, if such failure shall be incapable of cure within thirty (30) days, if Tenant shall not commence to cure such failure within such thirty (30) day period and continuously prosecute the performance of the same to completion with due diligence; or (iii) if Tenant becomes insolvent as defined in the Uniform Commercial Code as enacted in the State, or makes an assignment for the benefit of creditors; or if any action is brought by Tenant seeking its dissolution or liquidation of its assets or seeking the appointment of a trustee, interim trustee, receiver or other custodian for any of its property; or if Tenant commences a voluntary proceeding under the Federal Bankruptcy Code; or if any reorganization or arrangement proceeding is instituted by Tenant for the settlement, readjustment, composition or extension of any of its debts upon any terms; or if any action or petition is otherwise brought by Tenant seeking similar relief or alleging that it is insolvent or unable to pay its debts as they mature; or if any action is brought against Tenant seeking its dissolution or liquidation of any of its assets, or seeking the appointment of a trustee, interim trustee, receiver or other custodian for any of its property, and any such action is consented to or acquiesced in by Tenant or is not dismissed within ninety (90) days after the date upon which it was instituted; or if any proceeding under the Federal Bankruptcy Code is instituted against Tenant and (i) an order for relief is entered in such proceeding, or (ii) such proceeding is consented to or acquiesced in by Tenant or is not dismissed within ninety (90) days after the date upon which it was instituted; or if any reorganization or arrangement proceeding is instituted against Tenant for the settlement, readjustment, composition or extension of any of its debts upon any terms, and such proceeding is consented to or acquiesced in by Tenant or is not dismissed within ninety (90) days after the date upon which it was instituted; or if any action or petition is otherwise brought against Tenant seeking similar relief or alleging that it is insolvent, unable to pay its debts as they mature or generally not paying its debts as they become due, and such action or petition is consented to or acquiesced in by Tenant or is not dismissed within ninety (90) days after the date upon which it was brought. (b) If an Event of Default shall occur, Landlord may, at its option, in addition to all other rights and remedies provided under this Lease or by law or equity, exercise anyone or more of the following remedies, separately or concurrently or in any combination, to the extent permitted by law or equity, without any notice (except as expressly provided below) or demand whatsoever and without prejudice to any other remedy which it may have for possession of the Premises or for arrearages in Base Rent or Additional Rent: 15 ATLLlBOI 1611170.7 (i) Landlord may give Tenant notice of Landlord's intention to terminate this Lease on a date specified in such notice (which date shall be no sooner than the date of such notice). At the option of Landlord, upon the date therein specified, unless the Event of Default for which the termination is effected has been cured by Tenant, the Term and the estate hereby granted and all rights of Tenant hereunder shall expire and terminate as if such date were the Expiration Date. In such event, Tenant shall immediately quit and vacate the Premises and deliver and surrender possession of the Premises to Landlord, and this Lease shall be terminated at the time designated by Landlord in its notice of termination to Tenant. (ii) With or without terminating this Lease, Landlord may give Tenant written notice to surrender the Premises to Landlord on a date specified in such notice (which date shall be no sooner than the date of such notice), at which time Tenant shall surrender and deliver possession of the Premises to Landlord unless the Event of Default for which the termination is effected has been cured by Tenant. No such entry or repossession shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to Section 17(b)(i). (iii) Landlord may re-lease the Premises or any part thereof for the fair rental value thereof (as determined by Landlord is its reasonable discretion), on such other terms and conditions as Landlord may deem satisfactory, and receive the rental for any such releasing, in which event Tenant shall pay to Landlord on demand any deficiency that may arise by reason of such re-Ieasing. Tenant shall not be entitled to any excess revenue as a result of such re-Ieasing. (iv) Landlord may do whatever Tenant is obligated to do under the terms of this Lease, in which event Tenant shall reimburse Landlord on demand for any expenses that Landlord may incur in thus effecting satisfaction and performance of or compliance with Tenant's duties and obligations under this Lease. (c) In the event Landlord elects to terminate this Lease by reason of an Event of Default, then, Landlord may hold Tenant liable for: (i) all Base Rent and Additional Rent accrued to the date of such termination; plus (ii) an amount which, at the date of such termination, represents the present value, as computed using a discount rate of six percent (6%) per annum, of the excess, if any, of (A) the Base Rent and Additional Rent which would have otherwise been payable hereunder during the remainder of the Term, ~ (B) the fair rental value of the Premises for the same period. (d) Landlord's forbearance in pursuing or exerclSlng one or more of its remedies shall not be deemed or construed to constitute a waiver of any Event of Default or of any remedy. No waiver by Landlord of any right or remedy on one occasion shall be construed as a waiver of that right or remedy on any subsequent occasion or as a waiver of any other right or remedy then or thereafter existing. No failure of Landlord to pursue or exercise any of Landlord's powers, rights or remedies or to insist upon strict and exact compliance by Tenant with any agreement, term, covenant, condition, requirement, provision or restriction of this Lease, and no custom or practice at variance with the terms of this Lease, shall constitute a 16 ATLUBO} 1611170.7 waiver by Landlord of the right to demand strict and exact compliance with terms and conditions ofthis Lease. No termination of this Lease shall affect Landlord's right to collect Base Rent and Additional Rent for the period prior to termination. (e) Notwithstanding anything to the contrary set forth in this Lease, and notwithstanding any statutory or decisional law of the State to the contrary, Landlord shall use reasonable efforts to mitigate its damages by reason of any Event of Default hereunder. 18. Landlord Default. (a) The following shall constitute a default by Landlord under this Lease (a "Landlord Default"): if Landlord shall violate or breach, or shall fail fully and completely to observe, keep, satisfy, perform and comply with, any agreement, term, covenant, condition, requirement, restriction or provision of this Lease, and shall not cure such failure within thirty (30) days after Tenant gives Landlord written notice thereof, or, if such failure shall be incapable of cure within thirty (30) days, if Landlord shall not commence to cure such failure within such thirty (30) days period and continuously prosecute the performance of the same to completion with due diligence. (b) If and whenever any Landlord Default shall occur, Tenant may, at its option, in addition to all other rights and remedies provided under this Lease or by law or equity, without any notice (except as hereinafter provided) or demand whatsoever and without prejudice to any other remedy which it may have, do whatever Landlord is obligated to do under the terms of this Lease upon three (3) business days prior notice to Landlord, in which event Landlord shall reimburse Tenant on demand for any expenses, including, without limitation, reasonable attorneys' fees, which Tenant may incur in thus effecting satisfaction and performance of or compliance with Landlord's duties and obligations under this Lease. If Landlord fails to pay any such amount within ten (10) days after demand therefor, then such amount shall bear interest at the rate of eight percent (8%) per annum and Tenant shall have the right to set off against, and deduct from, Base Rent payable hereunder such amounts owing by Landlord to Tenant. (c) Tenant's forbearance in pursuing or exercising one or more of its remedies shall not be deemed or construed to constitute a waiver of any Landlord Default or of any remedy. No waiver by Tenant of any right or remedy on one occasion shall be construed as a waiver of that right or remedy on any subsequent occasion or as a waiver of any other right or remedy then or thereafter existing. No failure of Tenant to pursue or exercise any of Tenant's powers, rights or remedies or to insist upon strict and exact compliance by Landlord with any agreement, term, covenant, condition, requirement, provision or restriction of this Lease, and no custom or practice at variance with the terms of this Lease, shall constitute a waiver by Tenant of the right to demand strict and exact compliance with terms and conditions of this Lease. 19. Attornevs' Fees. The prevailing party, either Landlord or Tenant, shall be entitled to reasonable attorneys' fees actually incurred in connection with the institution of any action or proceeding for damages by reason of any alleged breach or default of any provision of this Lease, or any action or proceeding for a declaration of either party's rights or obligations hereunder or any action or proceeding for any other judicial remedy, at law or in equity. 17 ATLLlBOI 1611170.7 20. No Mere:er. There shall be no merger of this Lease or the usufruct created hereby with the fee simple estate in the Premises or any part thereof, by reason of the fact that the same Person may acquire, own or hold, directly or indirectly, this Lease or the usufruct created hereby or any interest in this Lease or such usufruct, and the fee simple estate in the Premises or any interest in such fee simple estate; and this Lease shall not be terminated except as expressly provided in this Lease. No such merger shall occur unless and until all Persons having any interest in this Lease or the usufruct created hereby and the fee simple estate in the Premises or any part thereof sought to be merged shall join in a written instrument effecting such merger and shall duly record the same. 21. Broker and Commission. All negotiations relative to this Lease and the leasing of the Premises contemplated by and provided for in this Lease have been conducted by and between Landlord and Tenant without the intervention of any person or other party as agent or broker, with the exception of Nichols Land & Investment Co.. a Georgia corporation (hereinafter called "Broker"), who is to be paid a commission in connection with the sale of the Premises by Tenant to Landlord, but no commission is due Broker in connection with this Lease. Landlord and Tenant warrant and represent to each other that there are and will be no broker's commissions or fees payable in connection with this Lease or the leasing of the Premises by reason of their respective dealings, negotiations or communications. Tenant shall in no event be liable or responsible for the payment of any commission, fee or other compensation to Broker. Landlord and Tenant shall, and do each hereby indemnify, defend and hold harmless each of the others from and against any and all liabilities, damages, losses, costs and expenses (including attorneys' fees and expenses) in any manner arising out of, by reason of or in connection with the claims, demands, actions and judgments of any and all brokers, agents and other intermediaries alleging a commission, fee or other payment to be owing by reason of their respective dealings, negotiations or communications in connection with this Lease or the leasing of the Premises. 22. General Provisions. (a) Notices. All notices, consents, approvals and other communications which may be or are required to be given by either Landlord or Tenant under this Lease shall be properly given only if made in writing and delivered by hand, sent by registered or certified mail, postage prepaid, return receipt requested, or sent by nationally recognized commercial courier for next business day delivery, to the addresses set forth below, or to such other addresses as are specified by written notice given in accordance herewith, or transmitted by telecopier to the number for each party set forth below their respective addresses, or to such other numbers as are specified by notice given in accordance herewith. All notices, consents, approvals and other communications delivered by hand shall be deemed given upon the date so delivered; those given by mailing as hereinabove provided shall be deemed given on the date of deposit in the United States Mail; those given by commercial courier as hereinabove provided shall be deemed given on the date immediately following the date of deposit with the commercial courier; and those given by telecopier as hereinabove provided shall be deemed given once such notice or other communication is transmitted to the telecopier number for each party set forth below their respective addresses, provided that the sending telecopier generates a transmission report showing the successful completion of such transaction. Nonetheless, the time period, if any, in 18 ATLLlBOI 1611170.7 " which a response to any notice, demand or request must be given shall commence to run from the date of receipt of the notice, demand or request by the addressee thereof, provided that with respect to a notice, demand or request sent by telecopy, if such telecopy is sent after 5:00 p.m. local time at the location of the receiving telecopier, or is sent on a day other than a business day, such notice, demand or request shall be deemed received as of 9:00 a.m. local time at such location on the next succeeding business day. Any notice, demand or request not received because of changed address or telecopy number of which no notice was given as hereinabove provided or because of refusal to accept delivery shall be deemed received by the party to whom addressed on the date of hand delivery, on the date oftelecopier transmittal (subject, however, to the provisos above with respect to the confirmation, date and time of the telecopier transmittal), on the first calendar day after deposit with commercial courier, or on the third calendar day following deposit in the United States Mail, as the case may be. Addresses and telecopier numbers for notices: Tenant: c/o AGL Resources Inc. Ten Peachtree Place Atlanta, Georgia 30309 Attention: General Counsel Telephone Number: (404) 584-3430 Telecopy Number: (404) 584-3419 With a copy to: AGL Resources Inc. Ten Peachtree Place Location 1391 Atlanta, Georgia 30309 Attention: Facilities Manager Telephone Number: (404) 584-4449 Telecopy Number: (404) 584-3817 Landlord: Telephone No. Telecopier No. With a copy to: 19 ATLUBO] 1611170.7 Telephone No. Telecopier No. (b) Facsimile as Writing. The parties expressly acknowledge and agree that, notwithstanding any statutory or decisional law to the contrary, the printed product of a facsimile transmittal shall be deemed to be "written" and a "writing" for all purposes of this Lease. (c) Binding Effect. This Lease shall be binding upon and enforceable against, and shall inure to the benefit of, the parties hereto and their respective heirs, legal representatives, successors and permitted assigns. (d) Headings. The use of headings, captions and numbers in this Lease is solely for the convenience of identifying and indexing the various provisions in this Lease and shall in no event be considered otherwise in construing or interpreting any provision in this Lease. (e) Exhibits. Each and every exhibit referred to or otherwise mentioned in this Lease is attached to this Lease and is and shall be construed to be made a part of this Lease by such reference or other mention at each point at which such reference or other mention occurs, in the same manner and with the same effect as if each exhibit were set forth in full and at length every time it is referred to or otherwise mentioned. (f) Defined Terms. Capitalized terms used in this Lease shall have the meanings ascribed to them at the point where first defined, irrespective of where their use occurs, with the same effect as if the definitions of such terms were set forth in full and at length every time such terms are used. (g) Pronouns. Wherever appropriate in this Lease, personal pronouns shall be deemed to include the other genders and the singular to include the plural. (h) Severability. If any term, covenant, condition or provision of this Lease, or the application thereof to any person or circumstance, shall ever be held to be invalid or unenforceable, then in each such event the remainder of this Lease or the application of such term, covenant, condition or provision to any other person or any other circumstance (other than those as to which it shall be invalid or unenforceable) shall not be thereby affected, and each term, covenant, condition and provision hereof shall remain valid and enforceable to the fullest extent permitted by law. (i) Time of Essence. Time is of the essence of this Lease. Anywhere a day certain is stated for payment or for performance of any obligation, the day certain so stated enters into and becomes a part of the consideration for this Lease. If any date set forth in this Lease shall fall on, or any time period set forth in this Lease shall expire on, a day which is a Saturday, Sunday, federal or state holiday, or other non-business day, such date shall automatically be extended to, and the expiration of such time period shall automatically to be extended to, the next day which is not a Saturday, Sunday, federal or state holiday or other non-business day. The final day of any time period under this Lease or any deadline under this Lease shall be the 20 ATLLIBOJ 1611170.7 " specified day or date, and shall include the period of time through and including such specified day or date. U) Applicable Law. This Lease shall be governed by, construed under and interpreted and enforced in accordance with the laws of the State. (k) Entire Ae:reement. This Lease contains the entire agreement of the parties with respect to the subject matter hereof, and all representations, warranties, inducements, promises or agreements, oral or otherwise, between the parties not embodied in this Lease shall be of no force or effect. (I) Modifications. This Lease shall not be modified or amended in any respect except by a written agreement executed by the parties in the same manner as this Lease is executed. (m) Counterparts. This Lease may be executed in several counterparts, each of which shall be deemed an original, and all of such counterparts together shall constitute one and the same instrument. (n) Authoritv. Each party hereto warrants and represents that such party has full and complete authority to enter into this Lease and each person executing this Lease on behalf of a party warrants and represents that he has been fully authorized to execute this Lease on behalf of such party and that such party is bound by the signature of such representative. (0) Counsel. Each party hereto warrants and represents that each party has been afforded the opportunity to be represented by counsel of its choice in connection with the execution of this Lease and has had ample opportunity to read, review, and understand the provisions of this Lease. (p) No Construction Ae:ainst Preparer. No provision of this Lease shall be construed against or interpreted to the disadvantage of any party by any court or other governmental or judicial authority by reason of such party's having or being deemed to have prepared or imposed such provision. (q) No USUry. The intention of the parties being to conform strictly to the applicable usury laws, whenever any provision herein provides for payment by either party to the other of interest at a rate in excess of the legal rate permitted to be charged, such rate herein provided to be paid shall be reduced to such legal rate. (r) Consent. Whenever under this Lease the consent or approval of Landlord is required, such consent or approval shall not be unreasonably withheld, conditioned or delayed. (s) Waiver of Trial bv Jurv. The parties, to the extent permitted by law, hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matter whatsoever, arising out of or in any way connected 21 ATLLlBOJ J6J 1170.7 " with this Lease, Tenant's use or occupancy of the Premises, or any claim of injury or damage hereunder. (t) No Estate. This Lease shall create the relationship of landlord and tenant between Landlord and Tenant; no estate shall pass out of Landlord; and Tenant shall have only a usufruct which is not subject to levy and sale. (u) Bindine Effect. In the event the original Landlord hereunder, or any successor owner of the Premises, shall sell or convey the Premises and if the purchaser or grantee shall assume all of the liabilities and obligation of the original Landlord and any successor owner as landlord under this Lease whether or not arising before or after such sale or conveyance, all liabilities and obligations on the part of the original Landlord, or such successor owner, under this Lease accruing thereafter shall terminate, and thereupon all liabilities and obligations of this Lease (including those arising prior to the date of such assumption or sale) shall be binding upon the new owner. Tenant agrees to attorn to such new owner provided such new owner assumes this Lease as Landlord. (v) Force Majure. Notwithstanding any other provision of this Lease, when a period of time is herein prescribed for any action to be taken by either party, such party shall not be liable or responsible for, and there shall be excluded from the computation for any such period of time any delays due to strikes, riots, acts of God, shortages of labor or materials, war, acts of terrorism, laws, regulations or restrictions or any other causes of any kind whatsoever which are beyond the reasonable control of such party; provided, however, in no event shall such acts, events or other causes act to excuse any delay in the payment of sums of money due hereunder. [Signatures commence on the following page.] 22 ATLLIBOJ 1611170.7 IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed and sealed by their duly authorized representatives, all effective as of the day and year first written above. LANDLORD: ,a_ OF THE STATE OF (SEAL) COPENHAVER Date of Landlord's Execution: tt.-jv401 . (Signatures continued on the following page) 23 ATLLIBOI 1611170.7 (Signatures continued from the prior page) TENANT: ATLANTA GAS LIGHT COMPANY, a Georgia corporation By: ~ &~ Mlm : (i J.0 W. ~VOi1 S Title: E. \J P o.nci (I J=D (CORPORATE SEAL) Date of Tenant's Execution: \ 1,/~ of 24 ATLLIBOI 1611170.7 EXr{lg" ,( 1) A ALL that. tract or pa~c:el of land, conta~n1ng ten (10) acres, situate, lying ana beinq in the 1269th G.M.D., Riohmond County, Georqia, fronting on the East side of WYlds Road a distance of 563.50 feet and extending- back between appro2timately pan.1Iel lines a dis~anee of 1,041.04 feet on its Northexn boundary au4 a distance of 938.37 feet on its Sout.hern boundary to the Manaer- uq center line of an. unnamed creek, all as will more fully appear upon a plat prepared by .:1amas G. SWixt. & AS5oci~tee, dated June 1, 1982, and ~evised November 4, 1982, which pla~ is ai:tacbed heret:o lUld by reference made a part he~eof ~or a more o~ple~e ~escription a~ t'o the metes, bounds and loeation of tbe said p~operty . The propert.y conveyed is a portion :.:....;---_.~--=:',!;....~~:::. of a lar~er tract devised t.o D. C. way under the Las~ Will and Test.ament of JlJary Bell wYlds Way duly probated in solemn form in the Office of the P~obate Court. of Richmond County, Georgia, and a portion of t:he property conveyed t.o Mary Bell Wylde Way under a Deed of Assent dated Fehr~a~ 12. 1941, and reco%ded in the office of the Clerk of the Superior Court of Richmond county, Georgia. in Realty :aook 14-F, page 362.