EXHIBIT 10.1
LEASE
THIS LEASE, dated June ___, 2006, for reference purposes only, is made by
and between HEWLETT-PACKARD COMPANY, a Delaware corporation ("Landlord") and
XXXXXXXX & COMPANY, a Georgia corporation ("Tenant"), to be effective as of the
date the last of the designated signatories to this Lease shall have executed
this Lease (the "Lease Commencement Date").
ARTICLE 1
REFERENCES
All references in this Lease (subject to any further clarifications
contained in this Lease) to the following terms shall have the following
meanings or refer to the respective address, person, date, time period, amount,
percentage, calendar year or fiscal year as below set forth:
Property: That certain real property situated in the City of
Atlanta, County of DeKalb, State of Georgia, as
presently improved with one (1) office building,
which real property is shown on the Site Plan
attached hereto as EXHIBIT "A" and is commonly
known as or otherwise described as follows: 00
Xxxxxxxxx Xxxxxx Xxxxxxxxx X.X., Xxxxxxx, Xxxxxxx.
The Property includes, without limitation, the
Premises, the Common Areas, and the Building,
described below.
Building: That certain building in which the Premises are
located commonly known as 00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx X.X., Xxxxxxx, Xxxxxxx, which Building
is shown outlined on EXHIBIT "A" hereto (the
"Building"). The Parties agree that the Building
contains 580,318 rentable square feet.
Tenant's Address for Notice: Xxxxxxxx & Company
00 Xxxxxxxxx Xxxxxx Xxxxxxxxx X.X.
Tenth Floor
Atlanta, Georgia 30319
Attn: General Counsel
With a copy to: Xxxxxx, Xxxxxxx & Xxxxxx, LLP
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Landlord's Addresses for Hewlett-Packard Company
Notices: 0000 Xxxxxxxx Xxxxxx XX, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Lease Administration
And
Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
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Rent Commencement Date: As to the First Phase Premises (defined in Section
2.1(C) below): November 1, 2006, or the date on
which Tenant commences operations in the First
Phase Premises, whichever occurs first (the "First
Phase RCD"). As to the Second Phase Premises
(defined in Section 2.1(C) below): April 1, 2007,
or the date on which Tenant commences operations
in the Second Phase Premises, whichever occurs
first (the "Second Phase RCD"), provided that the
Second Phase RCD will be extended on a day basis
for each day after January 1, 2007 that possession
of the Second Phase Premises has not been tendered
to Tenant, not to exceed ninety (90) days of total
extension. The First Phase RCD will be set forth
in a Rent Commencement Date letter which clearly
states the First Phase RCD and the Lease
Expiration Date. The Second Phase RCD will be set
forth in a Rent Commencement Date letter which
clearly states the Second Phase RCD. All
references in this Lease to the "Rent Commencement
Date" shall be to the First Phase RCD or the
Second Phase RCD, as applicable. The Lease
Expiration Date will be determined solely in
relation to the First Phase RCD.
Lease Term: As defined in Section 2.1(B) below.
Lease Commencement Date: As defined in the preamble paragraph set forth
above.
Lease Expiration Date: If the First Phase RCD is the first (1st) day of a
calendar month, then the Lease Expiration Date
shall be the last day of the calendar month
immediately preceding the eleventh (11th)
anniversary of the First Phase RCD, unless the
Lease Term is extended in accordance with Article
15 below, in which case the Lease Expiration Date
shall be the last day of the Extension Period that
took effect. If the First Phase RCD is other than
the first (1st) day of a calendar month, then the
Lease Expiration Date shall be the last day of the
calendar month in which the eleventh (11th)
anniversary of the First Phase RCD shall fall
unless the Lease Term is extended in accordance
with Article 15 below, in which case the Lease
Expiration Date shall be the last day of the
Extension Period that took effect. Notwithstanding
anything to the contrary herein, if this Lease is
terminated in accordance with its terms, the Lease
Expiration Date shall be the date of such
termination.
Option to Extend: Option to extend the initial Lease Term for three
(3) consecutive 5-year periods.
First Month's Prepaid Rent: $204,068.00
Tenant's Security Deposit: $3,294,072.00
Late Charge Amount: Four Percent (4%) of the Delinquent Amount
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Tenant's Required Liability $5,000,000 Combined Single Limit
Coverage:
Broker(s): Xxxxxxx & Xxxxxxxxx of Georgia, Inc. representing
Landlord only ("Landlord's Broker"); Xxxxxxx
Xxxxxx & Company representing Tenant only
("Tenant's Broker")
Common Areas: The "Common Areas" shall mean the common
corridors, hallways, lobbies, plazas, stairwells,
elevators, restrooms, driveways, parking areas,
tunnels, walkways, and other public or common
areas located within the Building and other areas
on the Property that are designated by Landlord
from time to time as common areas for the
Building; provided, however, that (i) Tenant's use
thereof shall be subject to (A) all Private
Restrictions (as defined in Section 13.12(m)
below) now or hereafter affecting the Property,
and (B) all Rules and Regulations (as defined
below) now or hereafter established by Landlord,
and (ii) except to perform Parapet Sign Repairs
(defined below), Tenant shall not go onto the roof
of the Building without Landlord's prior written
consent (which may be withheld in Landlord's sole
and absolute discretion) and without otherwise
being accompanied by a representative of Landlord.
Premises: All the interior space located in the 2nd, 0xx,
0xx, 0xx, 0xx, 0xx and 10th floors of the
Building, consisting of approximately 158,751
rentable square feet and, for purposes of this
Lease, agreed to contain said number of rentable
square feet. The Premises also include
approximately 1,479 usable square feet in the
mail/shipping area located on level P6 of the
Building (the "Mail Room Premises") and, for
purposes of this Lease, agreed to contain said
number of rentable square feet. The Premises are
shown on EXHIBIT "B" hereto.
Tenant's Share: 27.36% (which is the percentage obtained by
dividing the rentable square footage of the First
Phase Premises and Second Phase Premises by
580,318 rentable square feet).
Base Year: 2007
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Base Monthly Rent: The term "Base Monthly Rent" as to the First Phase
Premises and Second Phase Premises shall mean:
Period (Months) Per RSF Monthly Rent
--------------- ------- ------------
1* through 5 $20.750 $204,067.00
6 through 12** $20.750 $274,506.00
13 through 24 $21.321 $282,060.84
25 through 36 $21.907 $289,813.18
37 through 48 $22.509 $297,777.15
49 through 60 $23.128 $305,966.09
61 through 72 $23.765 $314,393.13
73 through 84 $24.418 $323,031.83
85 through 96 $25.089 $331,908.65
97 through 108 $25.779 $341,036.64
109 through 120 $26.488 $350,416.37
121 through 132 $27.217 $360,060.50
The term "Base Monthly Rent" as to the Mail Room
Premises shall be based on usable square feet and
shall mean:
Period (Months) Per USF Monthly Rent
--------------- ------- ------------
1* through 12 $ 12.00 $ 1,479.00
13 through 24 $ 12.33 $ 1,519.67
15 through 36 $ 12.67 $ 1,561.58
37 through 48 $ 13.02 $ 1,604.72
49 through 60 $ 13.38 $ 1,649.09
61 through 72 $ 13.74 $ 1,693.46
73 through 84 $ 14.12 $ 1,740.29
85 through 96 $ 14.51 $ 1,788.36
97 through 108 $ 14.91 $ 1,837.66
109 through 120 $ 15.31 $ 1,888.19
121 through 132 $ 15.74 $ 1,939.96
* Month 1 commences on the First Phase RCD
** Monthly Rent to be adjusted if the Second
Phase RCD is extended pursuant to the terms
of this Lease (see "Rent Commencement Date"
above)
Permitted Use: General office use and office uses incident
thereto including to the extent permitted by Law
and the Private Restrictions, training facilities
and classes and data center use.
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Exhibits: The term "Exhibits" shall mean the Exhibits of
this Lease which are described as follows:
EXHIBIT "A" - Site Plan showing the Property and
delineating the Building in which the Premises are
located
EXHIBIT "B" - Floor Plan delineating the Premises
EXHIBIT "C" - Tenant Estoppel Certificate
EXHIBIT "D" - Work Letter
EXHIBIT "E" - Parking License
EXHIBIT "F" - Initial Rules and Regulations
EXHIBIT "G" - Janitorial Specifications
EXHIBIT "H" - Riser License
Tenant Improvement $4,921,281.00 ($31.00/rsf of the Premises
Allowance: excluding the Mail Room Premises) (subject to
adjustment per Section 2.1(C))
ARTICLE 2
PREMISES, TERM AND POSSESSION
2.1 DEMISE OF PREMISES. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord for Tenant's own use in the conduct of Tenant's business,
for the Lease Term and upon the terms and subject to the conditions of this
Lease, the Premises. Tenant's lease of the Premises, together with the
non-exclusive license to use the Common Areas granted in Section 2.1(A) below,
shall be conditioned upon and be subject to the continuing compliance by Tenant
with all the terms and conditions of this Lease. Notwithstanding any provision
of this Lease to the contrary, Landlord hereby reserves to itself and its
designees all rights of access, use and occupancy of the Building's roof and all
risers and conduits in the Building, and Tenant shall have no right of access to
or use of the Building's roof or any of its risers and conduits (including the
risers and conduits located in the Premises) without Landlord's prior written
consent, except that: (1) Landlord consents to Tenant's use of the Building's
risers in accordance with the terms and conditions sent forth in the Riser
License attached hereto as EXHIBIT "H" and, (2) Tenant and its contractors may
enter upon the roof to the extent necessary to install, repair, maintain and/or
remove Tenant's Parapet Sign (as defined below) (collectively, "Parapet Sign
Repairs").
A. USE OF COMMON AREAS; RESERVATION. Subject to the terms and conditions of
this Lease, during the Lease Term Tenant shall have the non-exclusive license to
use, together with Landlord, its employees, agents, contractors, invitees, and
designees, and the tenants and occupants of the Building, the Common Areas. The
foregoing license shall be subject to the terms and limitations set forth in
this Lease, the Private Restrictions, and the Rules and Regulations, and shall
terminate concurrently with the expiration or sooner termination of this Lease.
Tenant acknowledges and agrees that the Common Areas shall at all times be
subject to the exclusive management and control of Landlord. Subject to the
terms and conditions of this Lease (including, without limitation, the
Additional Rent provisions contained in Article 3 below), Landlord agrees to
maintain the Common Areas in a manner consistent with Class A multi-tenant
buildings of comparable age and condition located in the Central Perimeter
Market of Atlanta, Georgia. Without limiting the foregoing, Landlord reserves
the right from time to time to use any of the Common Areas, and the roof, risers
and conduits of the Building, for telecommunications or any other purposes, and
to do or cause to be done any of the following: (1) make changes, additions,
improvements, repairs and/or replacements in or to the Property including,
without limitation, (x) changes in the location, size, shape and number of
driveways, entrances, loading and unloading areas, ingress, egress, direction of
traffic, landscaped areas, walkways, public and private
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xxxxxxx, xxxxxx, xxxxxxxxxx, transportation facilitation areas and common areas,
parking spaces, parking structures and parking areas ( subject to limitations on
reductions in Tenant's Parking passes as set forth in the Parking License), (y)
prohibiting parking or passage of motor vehicles in areas previously designated
for such and changing the location of exclusively marked parking spaces and (z)
expanding or decreasing the size of the Property (including, without limitation,
the Common Areas or any portion or element thereof) including, without
limitation, adding to or deleting buildings from the Property; (2) close
temporarily any of the Common Areas while engaged in making repairs,
improvements or alterations to the Property or to such extent, in Landlord's
opinion, as may be necessary to prevent a dedication thereof or the accrual of
any rights of any Person or the public therein; (3) form a common area
association or associations under covenants, conditions and restrictions to own,
manage, operate, maintain, repair and replace all or any portion of the
landscaping, driveways, walkways, parking areas, public and xxxxxxx xxxxxxx,
xxxxxx, xxxxxxxxxx, transportation facilitation areas and other common areas
located outside of the Building and include the common area assessments, fees
and taxes charged by the association(s) and the cost of maintaining, managing,
administering and operating the association(s), in Operating Expenses; and (4)
perform such other acts and make such other changes with respect to the Property
as Landlord may deem appropriate. Landlord agrees to use commercially reasonable
efforts to perform the above-described acts so as not to materially and
adversely impair Tenant's access to or use of the Premises in compliance with
this Lease. Performance of the above-described acts shall not subject Landlord
to any liability nor shall it entitle Tenant to any compensation or to any
diminution or abatement of Rent, and such acts shall not be deemed a
constructive or actual eviction or a breach of the covenant of quiet enjoyment.
B. LEASE COMMENCEMENT DATE AND LEASE TERM. Subject to Section 2.1(C) below,
the term of this Lease shall begin on the Lease Commencement Date and shall in
all events end on the Lease Expiration Date, unless sooner terminated in
accordance with the terms of this Lease (such period being sometimes referred to
herein as the "Lease Term"). Rent shall be payable as set forth in Article 3
below.
C. DELIVERY OF POSSESSION. Tenant shall not be entitled to use or possess
all or any part of the Premises located on the 3rd, 6th, 7th, 9th and 10th
Floors (collectively, the "First Phase Premises") until the later of (a) July 1,
2006 or (b) the date Landlord has delivered possession of the First Phase
Premises to Tenant. Subject to delays resulting from Force Majeure, Landlord
shall deliver possession of the First Phase Premises to Tenant by July 1, 2006.
However, if due to Force Majeure Landlord is unable to deliver possession of the
First Phase Premises to Tenant by July 1, 2006, Landlord shall not be in default
under this Lease and this Lease shall not be void, voidable or cancelable by
Tenant until the lapse of an additional ninety (90) days thereafter (the
"Delivery Grace Period"). The Delivery Grace Period shall be extended for such
number of days as Landlord may be delayed in delivering possession of the First
Phase Premises by reason of Force Majeure or the action or inaction of Tenant.
If Landlord is unable to deliver possession of the First Phase Premises within
the Delivery Grace Period (including any extension thereof by reason of Force
Majeure or the action or inaction of Tenant), then Tenant's sole remedy shall be
to terminate this Lease by written notice (the "Delayed Possession Termination
Notice") to Landlord delivered to Landlord within fifteen (15) days after the
last day of the Delivery Grace Period, and in no event shall Landlord be liable
in damages or otherwise to Tenant for such delay or failure to deliver
possession of the First Phase Premises to Tenant. If Tenant fails to deliver the
Delayed Possession Termination Notice to Landlord prior to (a) the end of said
fifteen (15) day period or (b) Landlord's delivery of possession of the First
Phase Premises, whichever shall first occur, Tenant's right to terminate this
Lease pursuant to this Section 2.1(C) shall lapse and be of no further force or
effect.
Tenant shall not be entitled to use or possess all or any part of the
Premises located on the 2nd or 5th Floors (collectively, the "Second Phase
Premises") until the later of (a) January 1, 2007 or (b) the date Landlord has
delivered possession of the Second Phase Premises to Tenant. If Landlord is
unable to deliver possession of the Second Phase Premises to Tenant by January
1, 2007, Landlord shall not be in default under this Lease and this Lease shall
not be void, voidable or cancelable by Tenant until the lapse of an additional
ninety (90) days thereafter (the "Second Delivery Grace Period"). The Second
Delivery Grace Period shall be extended for such number of days as Landlord may
be delayed in delivering possession of the Second Phase Premises by reason of
Force Majeure or the action or inaction
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of Tenant. If Landlord is unable to deliver possession of the Second Phase
Premises within the Second Delivery Grace Period (including any extension
thereof by reason of Force Majeure or the action or inaction of Tenant), then
Tenant's sole remedy shall be to terminate this Lease solely with respect to the
Second Phase Premises by written notice (the "Second Delayed Possession
Termination Notice") to Landlord delivered to Landlord within fifteen (15) days
after the last day of the Second Delivery Grace Period, and in no event shall
Landlord be liable in damages or otherwise to Tenant for such delay or failure
to deliver possession of the Second Phase Premises to Tenant. If Tenant fails to
deliver the Second Delayed Possession Termination Notice to Landlord prior to
(a) the end of said fifteen (15) day period or (b) Landlord's delivery of
possession of the Second Phase Premises, whichever shall first occur, Tenant's
right to terminate this Lease with respect to the Second Phase Premises pursuant
to this Section 2.1(C) shall lapse and be of no further force or effect. If
Tenant timely terminates this Lease as provided above with respect to the Second
Phase Premises, this Lease shall remain in full force and effect as to the First
Phase Premises, and on the date Landlord receives Tenant's Second Delayed
Possession Termination Notice the Base Monthly Rent, Tenant's Share, the Tenant
Improvement Allowance, and the number of parking passes issued to Tenant shall
be adjusted accordingly to reflect the rentable square footage within the First
Phase Premises, and the parties shall sign an amendment to this Lease reflecting
the revised Base Monthly Rent, Tenant's Share, and Tenant Improvement Allowance.
The Security Deposit shall not be subject to adjustment.
2.2 INITIAL TENANT IMPROVEMENT WORK; ACCEPTANCE OF POSSESSION. Tenant shall
perform all work and construct all initial tenant improvements in the Premises
on and subject to the terms and conditions contained in the Work Letter attached
hereto as EXHIBIT "D" (the "Work Letter") (such tenant improvements being
sometimes referred to herein as the "Initial Tenant Improvement Work"). By
accepting possession, occupying or using all or any part of the Premises for any
purpose, including performing the Initial Tenant Improvement Work or any aspect
or portion thereof, Tenant shall be deemed to have accepted the same and
acknowledged that the Premises were in the condition called for by this Lease
and the Work Letter. Except as may expressly be set forth in this Lease or the
Work Letter, Landlord shall not be obligated to provide or pay for any
improvement, alteration, remodeling or refurbishment work or services related to
the improvement, alteration, remodeling or refurbishment of the Premises. Except
as may expressly be set forth in this Lease or the Work Letter, Tenant shall
lease and accept the Premises in their "AS-IS", "WHERE-IS" condition on the date
Landlord tenders possession thereof to Tenant, subject to all existing Laws (as
hereinafter defined), Private Restrictions, easements and other matters of
public record respecting the use or occupancy of the Property or any part
thereof. Without limitation of the foregoing, Tenant acknowledges that the First
Phase Premises are being delivered with the raised flooring existing therein and
that the Mail Room Premises are not fully demised and that Tenant shall be
responsible at its sole expense for any demising or other alterations that
Tenant may wish to perform with respect to the Mail Room Premises.
Landlord represents to Tenant that, to Landlord's Actual Knowledge (as
defined below) without inquiry, as of the Lease Commencement Date none of the
existing improvements located within the Premises contain any Hazardous
Materials except as otherwise expressly disclosed in writing to Tenant by or on
behalf of Landlord and except for Hazardous Materials that lawfully may be
present or contained within such improvements. Landlord further represents to
Tenant that, to Landlord's Actual Knowledge, as of the Lease Commencement Date
Landlord has not received written notice from any governmental authority
alleging that a violation of environmental Law has occurred at the Property. As
used herein, "Landlord's Actual Knowledge" means the current, actual knowledge,
without inquiry or imputation, of Landlord's employee, Xxxxxx Xxxxxxx as such
knowledge exists on the Lease Commencement Date.
2.3 SURRENDER OF POSSESSION. Upon the expiration or sooner termination of
this Lease, Tenant shall remove all of Tenant's signs (if any) from the Building
and shall remove all of Tenant's equipment (including all cabling and wiring
installed by or for Tenant, wherever located), inventory, trade fixtures,
moveable furniture, supplies, wall decorations and other personal property (such
items, together with all cabling and wiring installed by or for Tenant wherever
located, shall be collectively referred to herein as "Tenant's Property") from
within the Premises or Building, as the case may be, and shall vacate and
surrender the Premises to Landlord in the same condition (except for changes
approved in writing by Landlord during the Lease Term), "broom-clean", as
existed upon completion of the Initial Tenant
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Improvement Work (subject to Landlord's right to require removal of Tenant's
alterations and improvements as provided in Section 6.1 below), reasonable wear
and tear and damage due to casualty or condemnation excepted. Tenant shall also
repair all damage to the Premises and Property resulting from the removal of
Tenant's Property; shall patch and refinish, to Landlord's reasonable
satisfaction, all penetrations made by Tenant or any Tenant Party (as defined
below) to the floor, walls or ceiling of the Premises, whether such penetrations
were made with Landlord's approval or not. Additionally, to the extent that
Landlord shall have notified or is deemed to have notified Tenant in writing at
the time the improvements or alterations were approved that Landlord desired to
have certain improvements or alterations made by or at the request of Tenant
removed at the expiration or sooner termination of this Lease pursuant to
Section 6.1 below, Tenant shall, upon the expiration or sooner termination of
the Lease, remove any such improvements and alterations and repair all damage
resulting from such removal. If the Premises are not surrendered to Landlord in
the condition required by this Section 2.3 at the expiration or sooner
termination of this Lease, Landlord may, at Tenant's expense, remove Tenant's
Property and/or Tenant's improvements and alterations not so removed and make
such repairs and replacements not so made or hire, at Tenant's expense,
independent contractors to perform such work. Tenant shall be liable to Landlord
for all costs incurred by Landlord in returning the Premises and Property to the
required condition and shall pay to Landlord the amount of all costs so incurred
within thirty (30) days of Landlord's billing Tenant for same. Any costs
remaining unpaid after the expiration of such thirty (30) day period shall
thereafter bear interest at the Default Rate (as defined below) until paid.
Tenant's obligations under this Section 2.3 shall survive the expiration or
sooner termination of this Lease.
2.4 RIGHT OF FIRST OFFER. Subject to the terms and conditions of this
Section 2.4, prior to accepting a bona fide written offer to lease all or any
portion of the leaseable area on the fourth (4th) and/or eighth (8th) floors of
the Building (collectively referred to herein as the "First Offer Space") from
any Person (other than a Superior Tenant, as defined below), and prior to
extending a bona fide written offer to lease all or any portion of the First
Offer Space to any Person (other than a Superior Tenant), Landlord shall provide
written notice to Tenant (the "First Offer Notice") of the material terms on
which Landlord would consider leasing all or any portion of the First Offer
Space to Tenant (which may or may not be the same terms as those being offered
to Landlord by any offeror or those which Landlord is prepared to offer others);
provided, however that Landlord's obligations and Tenant's rights under this
Section 2.4 with respect to any portion of the First Offer Space shall commence
only after the expiration or earlier termination of the following leases
(collectively, the "Superior Leases"), including any renewal or extension of the
Superior Leases (whether or not such renewal or extension is under an express
written provision in a Superior Lease or consummated under a lease amendment,
new lease or consensual holding over): any leases entered into within one (1)
year after the Lease Commencement Date with respect to all or any portion of the
First Offer Space where Hewlett-Packard Company or any successor to
Hewlett-Packard Company by merger, consolidation or sale of all or substantially
all of its business and assets or any affiliate of Hewlett-Packard Company is
the tenant under such leases. In addition, Tenant's rights under this Section
2.4 shall be subordinate and junior to all rights of expansion, rights of first
refusal, rights of first offer, or similar rights granted to the tenants under
the Superior Leases (collectively, the "Superior Tenants").
Landlord's First Offer Notice will identify the applicable First Offer
Space which is the subject of such notice (the "Applicable First Offer Space")
and the material terms upon which Landlord would consider leasing the Applicable
First Offer Space to Tenant. Upon delivery of Landlord's First Offer Notice to
Tenant, Tenant shall have seven (7) days thereafter to notify Landlord in
writing ("Tenant's Expansion Notice") of Tenant's desire to lease the Applicable
First Offer Space; provided, however, that Tenant's Expansion Notice shall be of
no force or effect if an Event of Default shall exist on the date Tenant
delivers Tenant's Expansion Notice to Landlord and in such event Tenant shall
forever forfeit all rights under this Section 2.4 with respect to the offered
Applicable First Office Space. Failure to deliver Tenant's Expansion Notice to
Landlord within said seven (7) day period shall forever terminate Tenant's
rights under this Section 2.4 as to the offered Applicable First Offer Space;
however, if such offered Applicable First Offer Space does not comprise the
entirety of the First Offer Space, all of Tenant's rights under this Section 2.4
with respect to the remainder of the First Offer Space shall remain in effect
subject to the terms and conditions of this Section 2.4. If Tenant delivers
Tenant's Expansion Notice to Landlord within said seven (7) day period, Landlord
and Tenant shall have a period of twenty (20) days thereafter
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in which to enter into a written amendment to this Lease (the "Amendment")
adding the Applicable First Offer Space to the Premises on such terms as the
parties may agree in their sole discretion in writing in the Amendment. Except
as the parties may otherwise agree in the Amendment (such as, without
limitation, a different rental and/or term for the Applicable First Offer
Space), the Applicable First Offer Space shall be added to the Premises on the
terms of this Lease. If by the end of said twenty (20) day period the parties
have not executed and delivered an Amendment in form and substance satisfactory
to both parties in their sole and absolute discretion, then all of Tenant's
rights under this Section 2.4 shall forever terminate and be of no further force
or effect as to the offered Applicable First Offer Space, provided, however, if
such Applicable First Offer Space does not comprise the entirety of the First
Offer Space Tenant's rights under this Section 2.4 as to the remainder of such
First Offer Space shall remain in effect subject to the terms and conditions of
this Section 2.4. The rights of Tenant under this Section 2.4 are personal to
the original Tenant hereunder, Xxxxxxxx & Company, and to any Successor Assignee
of Xxxxxxxx & Company, and may not be exercised by any other Tenant or Person.
2.5 USUFRUCT. This Lease shall create the relationship of landlord and
tenant only between the original named Landlord and Tenant herein and no estate
shall pass out of Landlord. Tenant shall only have a usufruct, not subject to
levy and sale and not assignable in whole or in part by Tenant except as
expressly provided in this Lease.
ARTICLE 3
RENT; LATE CHARGES
3.1 BASE MONTHLY RENT. Commencing on the First Phase RCD and continuing
throughout the Lease Term, Tenant shall pay to Landlord, without offset or prior
demand therefor, in advance on the first day of each calendar month, the amount
set forth as Base Monthly Rent in Article 1 (the "Base Monthly Rent").
Notwithstanding the foregoing, so long as no Event of Default exists at any time
during the Rent Credit Period (hereinafter defined), Tenant shall receive a
monthly credit (the "Monthly Rent Credit") against each installment of Base
Monthly Rent during the first (1st) twenty three (23) full calendar months
immediately following the First Phase RCD (the "Rent Credit Period") in the
following amounts (but only to the extent falling within the Rent Credit
Period):
Months Credit
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First Phase RCD through 9/30/07 $145,516.00 per month
10/1/07 through 9/30/08 $148,416.00 per month
The Monthly Rent Credit shall (a) be applied on a monthly basis against one
installment of Monthly Base Rent at a time during the Rent Credit Period and (b)
shall cease and terminate immediately upon the occurrence of any monetary Event
of Default or material non-monetary Event of Default. All other terms and
provisions of this Lease shall remain in full force and effect during the Rent
Credit Period.
3.2 ADDITIONAL RENT. Commencing on the First Phase RCD (or, in the case of
Tenant's obligations under Section 3.2(a) below, on January 1, 2008) and
continuing throughout the remaining Lease Term, in addition to the Base Monthly
Rent and to the extent not required by Landlord to be contracted for and paid
directly by Tenant, Tenant shall pay to Landlord as additional rent (the
"Additional Rent") the following amounts:
(a) An amount equal to Tenant's Share of the Property Operating
Expenses (as defined below) for any Expense Year (as defined below) that are in
excess of the Property Operating Expenses for the Base Year. The amount by which
the Property Operating Expenses for any given Expense Year exceed the Property
Operating Expenses for the Base Year is sometimes referred to herein as the
"Property Operating Expenses Increase". In respect of any Expense Year which is
partly within and partly without the Lease Term, Tenant's Share of the Property
Operating Expenses Increase shall be prorated to correspond to that portion of
the Expense Year occurring within the Lease Term.
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Landlord reserves the right to change from time to time the methods of billing
Tenant for any given Property Operating Expenses or the periodic basis on which
such expenses are billed, provided that Landlord shall not institute any such
changes more than twice (as to each item) during any calendar year.
(b) Landlord's share of the consideration received by Tenant upon
certain assignments and sublettings as required by Article 7;
(c) Any legal fees and costs that Tenant is obligated to pay or
reimburse to Landlord pursuant to this Lease; and
(d) Any other charges, interest, reimbursements or other sums due
Landlord pursuant to the terms of this Lease.
3.3 STATEMENT OF ESTIMATED INCREASE. Prior to April 1 of any Expense Year,
Landlord may give Tenant a written statement (the "Estimate Statement")
containing Landlord's estimate (the "Estimate") of the Property Operating
Expenses Increase for the entire then-current Expense Year (the "Estimated
Increase"). If pursuant to any Estimate Statement an Estimated Increase is
stated for the then-current Expense Year, Tenant shall pay, with its next
installment of Base Monthly Rent due, (i) a sum equal to one-twelfth (1/12th) of
such Estimated Increase multiplied by the number of months then elapsed
commencing with the first day of the then-current Expense Year, and (ii) in
advance, one-twelfth (1/12th) of the Estimated Increase in respect of the
then-current month, and (iii) thereafter, until a different Estimate Statement
shall be submitted to Tenant as above provided, each installment of Base Monthly
Rent shall be increased by an amount equal to one-twelfth (1/12th) of the
Estimated Increase. The failure of Landlord to timely furnish an Estimate
Statement for any Expense Year shall not prevent or prejudice Landlord from
doing so at any subsequent time and it shall not otherwise prejudice Landlord in
the enforcement of any of its rights under this Article 3 including, without
limitation, its right to collect any Additional Rent due under Section 3.2
above. The provisions of this Section 3.3 shall survive the expiration or sooner
termination of this Lease. Landlord shall not give Tenant more than two (2)
Estimate Statements in any one (1) Expense Year.
3.4 STATEMENT OF ACTUAL PROPERTY OPERATING EXPENSES; YEAR-END ADJUSTMENTS.
Landlord shall use reasonable efforts to give to Tenant on or before the first
day of May following the end of each Expense Year (other than the Base Year), a
statement (the "Operating Statement") which shall state the actual Property
Operating Expenses paid or incurred for the preceding Expense Year, and which
shall state the amount of the actual Operating Expenses Increase, if any, with
respect to the preceding Expense Year (other than the Base Year). If any such
Operating Statement shall show an overpayment or underpayment (as a result of
any Estimated Increases received by Landlord pursuant to Section 3.4 above
during the preceding Expense Year) of Tenant's Share of the Property Operating
Expenses Increase for the preceding Expense Year, (i) any overpayment shall, at
Landlord's option, be refunded to Tenant or credited against the next payment(s)
of Additional Rent due from Tenant under Section 3.2(a) above provided, however,
if such refund has not been fully paid or credited prior to the expiration of
the Lease Term, Landlord shall refund to Tenant the unpaid or unapplied balance
of such credit, as the case may be, within thirty (30) days after the expiration
of the Lease Term, which obligation shall survive the expiration or earlier
termination of this Lease, and (ii) the full amount of any underpayment shall be
paid to Landlord by Tenant within thirty (30) days after such Operating
Statement shall have been delivered to Tenant. The failure of Landlord to timely
furnish an Operating Statement for any Expense Year within three hundred sixty
five (365) days following the Lease Expiration Date shall prevent Landlord from
doing so at any subsequent time. The provisions of this Section 3.4 shall
survive the expiration or sooner termination of this Lease, provided that any
Operating Statement delivered to Tenant more than three hundred sixty five (365)
days after the Lease Expiration Date shall be of no effect.
3.5 LATE CHARGE, AND INTEREST ON RENT IN DEFAULT. Tenant acknowledges that
the late payment by Tenant of any monthly installment of Base Monthly Rent or
any Additional Rent will cause Landlord to incur certain costs and expenses not
contemplated under this Lease, the exact amounts of which are extremely
difficult or impractical to fix. Such costs and expenses will include, without
limitation,
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administration and collection costs and processing and accounting expenses.
Therefore, if any installment of Base Monthly Rent is not received by Landlord
from Tenant within fifteen (15) days after the same becomes due, Tenant shall
immediately pay to Landlord a late charge in an amount equal to the Late Charge
Amount, and if any Additional Rent is not received by Landlord within fifteen
(15) days after the same becomes due, Tenant shall immediately pay to Landlord a
late charge in an amount equal to the Late Charge Amount. Landlord and Tenant
agree that these late charges represent a reasonable estimate of such costs and
expenses and is fair compensation to Landlord for the anticipated loss Landlord
would suffer by reason of Tenant's failure to make timely payment.
Notwithstanding the foregoing, Landlord agrees that Tenant shall not be required
to pay the Late Charge Amount the first (1st) time during any calendar year
during the Lease Term that Base Monthly Rent or Additional Rent is received late
as provided in this Section 3.5. In no event shall this provision for a late
charge be deemed to grant to Tenant a grace period of extension of time within
which to pay any Rent installment or prevent Landlord from exercising any right
or remedy available to Landlord upon Tenant's failure to pay each Rent
installment due under this Lease when due, including the right to terminate this
Lease. If any Rent remains delinquent for a period in excess of fifteen (15)
days, then, in addition to such late charge, Tenant shall pay to Landlord
interest on any Rent that is not so paid from said fifteenth (15th) day at the
Default Rate until paid.
3.6 PAYMENT OF RENT. All Rent shall be paid in lawful money of the United
States, without any abatement (except as expressly set forth in this Lease),
reduction, counterclaim or offset for any reason whatsoever, to Landlord at such
address as Landlord may designate from time to time. Landlord initially
designates the following addresses for receipt of Rent payments: Hewlett-Packard
Company, c/o MacMunnis, Inc., 0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx
00000. Tenant's obligation to pay Base Monthly Rent and all Additional Rent
shall be appropriately prorated at the commencement and expiration of the Lease
Term. The failure by Tenant to pay any Additional Rent as required pursuant to
this Lease when due shall be treated the same as a failure by Tenant to pay Base
Monthly Rent when due, and Landlord shall have the same rights and remedies
against Tenant as Landlord would have had Tenant failed to pay the Base Monthly
Rent when due.
3.7 PREPAID RENT. Tenant shall, upon execution of this Lease, pay to
Landlord the amount set forth in Article 1 as "First Month's Prepaid Rent" as
prepayment of rent for credit against the first and second payments of Base
Monthly Rent due hereunder.
3.8 TENANT'S AUDIT RIGHTS. In the event Tenant disputes the amount of
Property Operating Expenses set forth in the Operating Statement delivered by
Landlord to Tenant for a particular Expense Year, Tenant shall have the right,
at Tenant's cost, after reasonable prior written notice to Landlord, to have
Tenant's authorized employees or agents review during normal business hours, at
the offices of Landlord where Landlord's books and records for the Property are
kept, Landlord's books and records concerning the Property Operating Expenses
set forth in such Operating Statement; provided, however, Tenant shall have no
right to conduct such review, have an audit performed by the Accountant as
described below, or object to or otherwise dispute the amount of the Property
Operating Expenses set forth in any such Operating Statement unless Tenant
notifies Landlord in writing of such objection and dispute, completes such
review, and has the Accountant commence and complete such audit within twenty
four (24) months immediately following Landlord's delivery of the particular
Operating Statement in question (the "Review Period"); provided, further, that
notwithstanding any such timely objection, dispute, review, and/or audit, and as
a condition precedent to Tenant's exercise of its right of objection, dispute,
review and/or audit as set forth in this Section 3.8, Tenant shall not be
permitted to withhold payment of, and Tenant shall timely pay to Landlord, the
amount of Additional Rent shown in the Operating Statement as being due from
Tenant. However, such payment may be made under protest pending the outcome of
any audit which may be performed by the Accountant as described below. In
connection with any such review by Tenant, Landlord and Tenant shall reasonably
cooperate with each other so that such review can be performed pursuant to a
mutually acceptable schedule, in an expeditious manner and without undue
interference with Landlord's operation and management of the Building. If after
such review Tenant still disputes the amount of the Property Operating Expenses
set forth in the Operating Statement, Tenant shall have the right, within the
Review Period, to cause an independent certified public accountant which is not
paid on a contingency basis and which is mutually approved by Landlord and
Tenant (the
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"Accountant") to complete an audit of Landlord's books and records pertaining to
the subject Property Operating Expenses to determine the proper amount of the
Property Operating Expenses incurred and Tenant's Share of the Property
Operating Expenses Increase for the Expense Year which is the subject of such
Operating Statement. Such audit by the Accountant shall be final and binding
upon Landlord and Tenant (absent fraud or mathematical error). If Landlord and
Tenant cannot mutually agree on the identity of the Accountant within thirty
(30) days after Tenant notifies Landlord that Tenant desires an audit to be
performed, then the Accountant shall be a reputable and qualified certified
public accounting firm, which is not paid on a contingency basis and has not
previously represented either party, and which is selected by Tenant and
reasonably approved by Landlord. If such audit reveals that Landlord's Operating
Statement has over-charged Tenant, then within thirty (30) days after the
results of such audit are made available to Landlord, Landlord shall reimburse
to Tenant the amount of such over-charge. If the audit reveals that Landlord's
Operating Statement has under-charged Tenant, then within thirty (30) days after
the results of such audit are made available to Tenant, Tenant shall reimburse
to Landlord the amount of such under-charge. Tenant agrees to pay the cost of
such audit unless the audit revealed that Tenant was overcharged by three
percent (3%) or more of Tenant's Share of the total Property Operating Expenses
which were the subject of such audit, in which case Landlord shall pay the costs
of such audit. The payment by Tenant of any amounts pursuant to this Section 3.8
shall not preclude Tenant at any time during the Review Period from questioning
the accuracy of the Operating Statement, but the failure of Tenant to object
thereto, conduct and complete its review and have the Accountant conduct and
complete the audit as described above prior to the expiration of the Review
Period shall be conclusively deemed Tenant's approval of the Operating Statement
in question and the amount of Property Operating Expenses shown thereon (and the
amount due from Tenant as shown therein) unless the failure of the audit to be
completed prior to the end of the Review Period is the result of Landlord's
failure to provide to Tenant the necessary access to Landlord's books and
records. In connection with any review and/or audit conducted by Tenant pursuant
to this Section 3.8, Tenant shall keep, and cause all of Tenant's employees and
agents and the Accountant to keep, all of Landlord's books and records and the
audit, and the results thereof, strictly confidential, and in connection
therewith, Tenant shall cause such employees, agents and the Accountant to
execute such confidentiality agreements as Landlord may require prior to
conducting any such review and/or audit. Landlord agrees to retain its books and
records with respect to the determination of Property Operating Expenses for a
particular Expense Year for a period of at least two (2) years following the end
of such Expense Year.
ARTICLE 4
USE OF PREMISES AND COMMON AREAS
4.1 PERMITTED USE. Tenant shall not use the Premises, nor permit the same
to be used by any Person, for any purpose other than the Permitted Use set forth
in Article 1 above. Tenant shall not use, nor permit any Tenant Party to use,
any portion of the Common Areas except to the extent permitted under Section 2.1
above.
4.2 GENERAL LIMITATIONS ON USE. Tenant shall not do or permit anything to
be done in the Premises, or do or permit any Tenant Party to do on any other
part of the Property, which does or could (a) interfere with the use, occupancy,
business operations or quiet enjoyment of any other tenant or occupant of the
Building or Property (including Landlord); or (b) jeopardize the structural
integrity of the Building or cause damage to any part of the Premises or
Property (except for damage to the Premises that is a necessary component of
Alterations that Tenant is permitted to make to the Premises under the terms of
Section 6.1 below (and subject to Tenant's repair and indemnification
obligations under this Lease). Tenant shall not operate any equipment within the
Premises which does or could (i) injure, vibrate or shake the Premises or
Building, (ii) damage, overload or impair the efficient operation of any
electrical, plumbing, heating, ventilating or air conditioning systems within or
servicing the Premises or Building, or (iii) damage or impair the efficient
operation of the sprinkler system (if any) within or servicing the Premises or
Building. Tenant shall not place any loads upon the floors, walls, ceiling or
roof systems which could endanger the structural integrity of the Building or
damage its floors, foundations or supporting structural components. Tenant shall
not install any equipment or antennae or make any penetration of the exterior
xxxxx or roof of the Building, except for such penetrations as are necessary to
install Tenant's Parapet Sign on the exterior of the Building. Tenant shall not
place any explosive,
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flammable or harmful fluids or other waste materials in the drainage systems of
the Premises or Property. Tenant shall not drain or discharge any fluids in the
landscaped areas or across the paved areas of the Property. Tenant shall not use
any of the Common Areas for storage of its materials, supplies, inventory or
equipment and all such items shall be stored within the Premises. Tenant shall
not commit nor permit to be committed (by any Tenant Party) any waste or
nuisance in or about the Premises or Property.
4.3 NOISE AND EMISSIONS; SALES RECOGNITION XXXX. All noise generated by
Tenant in its use of the Premises shall be confined or muffled so that it does
not materially interfere with the businesses of or annoy any of the other
tenants, occupants (including Landlord) or users of the Building; provided,
however, that Tenant shall not be in violation of the foregoing as a result of
noise produced during construction of the Initial Tenant Improvement Work as
long as neither Tenant nor any Tenant Party causes or generates noise in excess
of that typically produced during construction of improvements to multi-tenant
office building space using the best accepted methods to control noise in
occupied multi-tenant buildings and (ii) if requested by Landlord, performs any
unreasonably noisy work after Normal Business Hours. All dust, fumes, odors and
other emissions generated by Tenant's use of the Premises shall be sufficiently
dissipated in accordance with sound environmental practice and exhausted from
the Premises in such a manner so as not to interfere with the businesses of or
annoy any of the other tenants, occupants (including Landlord) or lawful users
of the Building or cause any damage to the Premises or Property or any component
part thereof.
During the Lease Term, Tenant may install, maintain and operate a Sales
Recognition Xxxx (as defined below) in that portion of the First Phase Premises
located on the tenth (10th) floor of the Building provided that the installation
thereof is permitted by applicable Law and the Private Restrictions and is
performed in accordance with applicable Law, the Private Restrictions, the Rules
and Regulations and the requirements of Article 6.1 below and further provided
that the maintenance, operation and/or use thereof (including any ringing,
clanging or sounding thereof) does not violate any applicable Law (including any
workplace safety or other health or safety Law) or the Private Restrictions,
does not annoy any of the other tenants, occupants or users of the Building and
complies with the other terms of this Lease. Without limiting the foregoing
restrictions, if Landlord receives more than one complaint in any thirty (30)
day period from any tenant, occupant or other user of the Building that the use
or operation of the Sales Recognition Xxxx is objectionable due to frequency,
intermittency, shrillness, decibel level or other measure of loudness (audible
outside of the First Phase Premises) and Landlord makes written demand on Tenant
to cease and desist such use or operation, Tenant shall immediately cease and
desist such use or operation until such time, if any, that Tenant is able to
resume its use and operation of the Sales Recognition Xxxx without causing
objection thereto by any other tenant, occupant or user of the Building and
otherwise in compliance with this paragraph. The "Sales Recognition Xxxx" shall
mean a steam locomotive style xxxx not to exceed 54 inches in height, 29 inches
in diameter, and approximately 300 pounds in weight that is rung intermittently
by Tenant's officers or employees in recognition of employee performance.
4.4 PREMISES CONDITION; WINDOW COVERINGS. Tenant shall keep the Premises in
a clean, safe and neat condition. Tenant shall not remove blinds from windows or
otherwise remove or modify any window coverings installed by Landlord in the
Premises.
4.5 PARKING. Tenant shall not at any time park on the Common Areas or any
other part of the Property, or permit any Tenant Party to do the same, any car,
truck or other automobile, except to the extent permitted under the Parking
License entered into concurrently herewith between Landlord and Tenant in the
form of EXHIBIT "E" hereto (the "Parking License"). Except as set forth in the
Parking License, Tenant shall not at any time park on the Common Areas or any
other part of the Property, or permit any Tenant Party to do the same,
recreational vehicles or non-operating vehicles (which shall not be deemed to
include Tenant's permitted fleet vehicles) or equipment. Tenant assumes full
responsibility for compliance by each Tenant Party with the parking provisions
contained herein and in the Parking License. If Tenant or any Tenant Party parks
any vehicle on the Property in violation of such provisions, then Landlord may,
upon prior written notice to Tenant giving Tenant one (1) day (or any applicable
statutory notice period, if longer than one (1) day) to remove such vehicle(s),
in addition to any other remedies Landlord may have under this Lease, charge
Tenant, as Additional Rent, and Tenant agrees to
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pay, as Additional Rent, Fifty Dollars ($50.00) per day for each day or partial
day that each such vehicle is so parked within the Property. Landlord reserves
the right to grant easements and access rights to others for use of the parking
areas on the Property, but shall not do so in a manner that deprives Tenant of
the use of any reserved parking passes issued to Tenant under the terms of the
Parking License.
4.6 SIGNS. Tenant shall not place or install on or within any portion of
the Premises any sign, advertisement, banner, placard, or picture which is
visible from outside the Premises unless and until Landlord shall have approved
in writing, in its sole discretion, the location, size, content, design, method
of attachment and material to be used in the making of such sign. Except as
provided in the preceding sentence, Tenant shall not place or install on or
within the Building or any other part of the Property any sign, advertisement,
banner, placard, or picture unless and until Landlord shall have approved in
writing, in its sole discretion, the location, size, content, design, method of
attachment and material to be used in the making of such sign. Any sign or signs
which Tenant may desire to be installed, if and when approved by Landlord, shall
be installed at Tenant's sole cost and expense and only in strict compliance
with Landlord's approval, using a Person approved by Landlord to install same.
Landlord may remove any signs (which have not been approved in writing by
Landlord), advertisements, banners, placards or pictures so placed by Tenant on
or within the Premises, the exterior of the Building or any other part of the
Property and charge to Tenant the cost of such removal, together with any costs
incurred by Landlord to repair any damage caused thereby, including any cost
incurred to restore the surface (upon which such sign was so affixed) to its
original condition. Tenant shall remove all of Tenant's signs in the Premises,
repair any damage caused thereby, and restore the surface upon which the sign
was affixed to its original condition, all to Landlord's reasonable
satisfaction, upon the expiration or sooner termination of this Lease.
Notwithstanding anything to the contrary herein, the size, appearance, and
location of any signs constructed or installed on the Property shall be subject
to the requirements of applicable Law and any Private Restrictions. The
obligations of Tenant under this Section 4.6 shall survive the expiration or
sooner termination of this Lease.
Provided the original named tenant hereunder, Xxxxxxxx & Company, or its
Successor Assignee, leases six (6) full floors of the Building during the Lease
Term, subject to the terms and conditions set forth below Landlord shall allow
Xxxxxxxx & Company, or its Successor Assignee, one Building standard sign panel
(identifying Xxxxxxxx & Company or its Successor Assignee) on the existing
monument sign for the Building and one exterior sign (identifying Xxxxxxxx &
Company or its Successor Assignee) on the eastern parapet of the Building;
provided, however, that Landlord shall have the right to approve the design and
appearance of such signage and to determine the dimensions and location of such
signage on the monument sign and/or eastern parapet, and provided further that
no such signage will be allowed unless it complies in all respects with all
applicable Law and Private Restrictions. In addition, during the Lease Term,
Landlord shall also provide Tenant with a reasonable and proportional allocation
of lines on the Building directory for placement of Tenant's business unit
name(s) and location in the Building.
Xxxxxxxx & Company shall prepare plans and specifications for the design
and fabrication of Tenant's proposed Building standard monument sign panel and
submit the same to Landlord for approval. The plans and specifications shall
comply with any requirements of applicable Law and the Private Restrictions.
Landlord agrees not to unreasonably withhold or delay its approval of Tenant's
proposed plans and specifications, except that the dimensions and location of
the sign panel on the monument sign shall be determined by Landlord in its sole
and absolute discretion, provided, however, that Landlord will use reasonable
efforts to cause Tenant's monument sign panel to be placed in a panel slot
commensurate with the percentage of the floor area of the Building being leased
and occupied by Tenant, but at all times below the panel slot of Hewlett-Packard
Company if Hewlett-Packard Company is an occupant of the Building. If and when
Landlord approves such plans and specifications in writing, Xxxxxxxx & Company
shall cause such sign panel to be fabricated in accordance with the approved
plans and specifications and deliver the completed sign panel to Landlord for
installation on the monument sign. Provided the sign panel complies with
applicable Law and the Private Restrictions, Landlord will promptly cause such
sign panel to be installed at Tenant's expense. Within thirty (30) days after
receipt of Landlord's invoice therefor, Tenant shall reimburse Landlord, as
Additional Rent, for the costs incurred by Landlord to install Tenant's monument
sign panel. Landlord, at Tenant's expense, shall cause Tenant's monument sign
panel to be kept and maintained (which shall include replacement, as necessary)
in good,
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safe and attractive condition. Within thirty (30) days after receipt of
Landlord's invoice therefor, Tenant shall reimburse Landlord, as Additional
Rent, for any costs incurred by Landlord under the preceding sentence.
As part of the Initial Tenant Improvement Work, Xxxxxxxx & Company shall
prepare plans and specifications for the design, fabrication and installation of
its proposed exterior sign on the Building's eastern parapet ("Tenant's Parapet
Sign") and submit the same to Landlord for approval (which Landlord may withhold
in its sole and absolute discretion). The plans and specifications shall comply
with any requirements of applicable Law and the Private Restrictions. Any such
plans and specifications approved in writing by Landlord are referred to herein
as the "Parapet Sign Plans". Provided the installation of Tenant's Parapet Sign
is permitted under applicable Law and the Private Restrictions, Tenant, at its
sole expense, shall promptly cause such sign to be fabricated and installed on
the Building's eastern parapet in accordance with the Parapet Sign Plans,
applicable Laws and the Private Restrictions. The installation shall be
performed by a qualified and duly licensed contractor reasonably acceptable to
Landlord, and Tenant shall ensure that the installation of Tenant's Parapet Sign
is performed in a good and workmanlike manner and without interfering with the
other tenants, occupants or users of the Building (including Landlord) or their
use or occupancy of the Building or Common Areas. Tenant shall take all
precautionary steps reasonably necessary to protect its personnel, property,
equipment and facilities and the personnel, property, equipment and facilities
of others affected by such installation work, and shall make adequate provision
for the safety and convenience of the tenants, occupants or users of the
Building (including Landlord). In addition, Tenant, at its sole expense, shall
cause Tenant's Parapet Sign to be kept and maintained (which shall include
replacement, as necessary) in good, safe and attractive condition, and Landlord
shall have no obligations with respect thereto. For purposes of this paragraph,
all references to "Tenant" shall include only Xxxxxxxx & Company or its
Successor Assignee.
Notwithstanding anything to the contrary herein, if at any time Tenant does
not lease at least six (6) full floors of the Building and does not actually
occupy at least six (6) full floors of the Building (not counting floors that
are leased but vacant), its signage rights with respect to the monument sign and
eastern parapet of the Building shall immediately and forever terminate, and
Tenant shall cause its monument sign panel and Tenant's Parapet Sign to be
removed from the monument sign and the Building in accordance with applicable
Law and the Private Restrictions within thirty (30) days following such
termination and shall immediately repair any and all damage to the monument sign
and/or Building that may result from such removal, all at Tenant's sole expense.
Prior to the expiration or sooner termination of this Lease, Tenant shall cause
its monument sign panel and Tenant's Parapet Sign to be removed from the
monument sign and the Building in accordance with Applicable Law and the Private
Restrictions and shall immediately repair any and all damage to the monument
sign and/or Building that may result from such removal, all at Tenant's sole
expense. Tenant's removal and repair obligation shall survive the expiration or
sooner termination of this Lease. For purposes of this paragraph, all references
to "Tenant" shall include only Xxxxxxxx & Company or its Successor Assignee.
Tenant acknowledges and agrees that the signage rights with respect to the
monument sign and eastern parapet of the Building are personal to the original
named Tenant hereunder, Xxxxxxxx & Company or its Successor Assignee, and may
not be exercised by any Tenant or other Person except Xxxxxxxx & Company or its
Successor Assignee.
4.7 COMPLIANCE WITH LAWS AND PRIVATE RESTRICTIONS. Tenant shall abide by
and shall promptly observe and comply with, at its sole expense, all Laws and
Private Restrictions respecting the conduct of Tenant's business at the
Premises, workplace conditions or safety at the Premises, industrial hygiene at
the Premises, environmental matters at the Premises, or the repair, maintenance,
use or occupancy of the Premises, Building or Property including, without
limitation, all Laws governing the use, storage, handling, release, discharge,
transportation or disposal of Hazardous Materials, and shall defend, indemnify
and hold Landlord harmless from and against any Adverse Consequences (as defined
below) resulting from Tenant's failure to abide, observe, or comply with such
Laws or Private Restrictions. The provisions of this Section 4.7 shall survive
the expiration or sooner termination of this Lease.
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4.8 COMPLIANCE WITH INSURANCE REQUIREMENTS. With respect to any insurance
policies required or permitted to be carried by Landlord in accordance with the
provisions of this Lease, Tenant shall not conduct nor permit any Tenant Party
to conduct any activities nor keep, store or use (or allow any other Person to
keep, store or use) any item or thing within the Premises, the Building, the
Common Areas or the Property which (a) is prohibited under the terms of any such
policies, (b) could result in the termination of the coverage afforded under any
of such policies, (c) could give to the insurance carrier the right to cancel
any of such policies, or (d) could cause an increase in the rates (over standard
rates) charged for the coverage afforded under any of such policies. Tenant
shall comply with all requirements of any insurance company, insurance
underwriter, or Board of Fire Underwriters which are necessary to maintain, at
standard rates, the insurance coverages carried by either Landlord or Tenant
pursuant to this Lease.
4.9 LANDLORD'S RIGHT TO ENTER. Landlord shall be permitted, upon reasonable
prior notice (which notice may be oral or written) except in emergencies and
with respect to the provision of regular cleaning services (with respect to
which no notice shall be required), at any time and from time-to-time, to enter
and to have its authorized agents, employees and contractors enter the Premises
during Normal Business Hours (as defined below) for the purpose of (a)
inspecting the same; (b) showing the Premises to prospective purchasers,
mortgagees or tenants (with respect to tenants, only during the last nine (9)
months of the Lease Term); (c) making necessary alterations, additions,
restorations or repairs and having access to utilities and services (including
all ducts, conduits, risers, and access panels (if any), which Tenant shall not
obstruct; or (d) performing any of Tenant's obligations when Tenant has failed
to do so. Landlord shall use reasonable efforts to schedule the activities
described in clause (c) above after Normal Business Hours except in the case of
casualty, condemnation, imminent harm to persons or damage to property, or other
emergency and, unless Tenant pays all Additional Costs (as defined below)
associated with the activities described in clause (c) above, only so long as
the scheduling and performance of such activities after Normal Business Hours
does not result in any additional cost or expense to Landlord such as the
payment of overtime or premium wages or charges ("Additional Costs"). Landlord
shall also have the right to enter the Premises during Normal Business Hours (or
as otherwise agreed) for purposes of supplying any maintenance or services
agreed to be supplied by Landlord in this Lease. Any of the foregoing entries
into the Premises shall not under any circumstances be construed or deemed to be
a forcible or unlawful entry into, or a detainer of, the Premises, or an
eviction, actual or constructive of Tenant from the Premises or any portion
thereof, and Tenant shall not be entitled to compensation or any diminution or
abatement of Rent for any inconvenience, nuisance or discomfort caused thereby.
Landlord, in exercising its rights under this Section 4.9 shall use its
commercially reasonable efforts to minimize, to the extent reasonably
practicable under the circumstances, interference with Tenant's access to and
operations in the Premises, provided that in an emergency Landlord or Persons
authorized by it may enter and use the Premises without regard to minimizing
interference.
4.10 USE OF COMMON AREAS. Tenant shall at all times keep the Common Areas
free and clear of Tenant's and/or any Tenant Party's materials, equipment,
debris, trash (except within designated existing enclosed trash areas),
inoperable vehicles, and other items which are not specifically permitted by
Landlord to be stored or located thereon by Tenant. If, in the opinion of
Landlord, unauthorized Persons are using any of the Common Areas by reason of,
or under claim of, the express or implied authority or consent of Tenant, then
Tenant, upon demand of Landlord, shall use commercially reasonable efforts to
restrain, to the fullest extent then allowed by Law, such unauthorized use.
Landlord reserves the right to grant easements and access rights to others for
use of the Common Areas (but in doing so shall use commercially reasonable
efforts to minimize, to the extent reasonably practicable under the
circumstances, interference with Tenant's access to the Premises or use of the
reserved parking passes issued to Tenant under the Parking License) and shall
not be liable to Tenant for any diminution in Tenant's right to use the Common
Areas as a result.
4.11 ENVIRONMENTAL PROTECTION.
(a) As used herein, the term "Hazardous Materials" shall mean any
toxic or hazardous substance, material or waste or any pollutant or infectious,
fungal or radioactive material, including, but not limited to, those substances,
materials or wastes regulated now or in the future under
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any of the following statutes or regulations, and any of those substances
included within the definitions of "hazardous substances", "hazardous
materials", "hazardous waste", "hazardous chemical substance or mixture",
"imminently hazardous chemical substance or mixture", "toxic substances",
"hazardous air pollutant", "toxic pollutant", or "solid waste" in the (i)
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.
Sections 9601, et seq., (ii) Resource Conservation and Recovery Act of 1976, 42
U.S.C. Sections 6901, et seq., (iii) Federal Water Pollution Control Act, 33
U.S.C. Sections 1251, et seq., (iv) Clean Air Act, 42 U.S.C. Sections 7401, et
seq., (v) Toxic Substances Control Act, 14 U.S.C. Sections 2601, et seq., (vi)
Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq., (vii)
Georgia Air Quality Control Act, O.C.G.A. Sections 12-9-1 et seq.; (viii)
Georgia Comprehensive Solid Waste Management Act, O.C.G.A. Sections 12-8-20 et
seq.; (ix) Georgia Water Quality Act, O.C.G.A. Sections 12-5-20 et seq.; (x)
Georgia Hazardous Waste Management Act, O.C.G.A. Sections 12-8-60 et seq.; and
(xi) any regulations, rules, decrees or orders issued pursuant to any of said
Laws or replacements or amendments thereof. "Hazardous Materials" shall also
include substances, materials, wastes or emissions which are, or in the future
become, regulated under Laws for the protection of human health or the
environment and shall also include, without limitation, (A) trichloroethylene,
tetrachloroethylene, perchloroethylene and other chlorinated solvents, (B) crude
oil, petroleum products or fractions thereof, (C) asbestos, (D) polychlorinated
biphenyls, (E) flammable explosives, (F) urea formaldehyde, and (G) radioactive
materials and waste.
(b) Tenant shall comply with all Laws relating to the storage, use,
handling, transportation, release, discharge or disposal of Hazardous Materials
by Tenant or any Tenant Party; provided, however, that Tenant shall not be
responsible for contamination of the Premises or Property by Hazardous Materials
existing immediately prior to the Lease Commencement Date, except to the extent
Tenant or a Tenant Party caused such contamination to exist, and nor shall
Tenant be responsible for any contamination of the Property by Hazardous
Materials placed on the Property by Landlord or any other tenant of the Building
on or after the Lease Commencement Date, except to the extent Tenant or a Tenant
Party causes the release or discharge of such Hazardous Materials. Tenant shall
not store, use, handle, transport or dispose of any Hazardous Materials, except
for customary amounts of Hazardous Materials that are contained in typical
office or cleaning supplies, provided the same are at all times used, stored,
handled, transported and disposed of in compliance with all applicable Laws
("Permitted Office Materials"). Tenant shall provide Landlord with copies of all
material safety data sheets and other documentation required under applicable
Laws in connection with Tenant's use, storage, handling or disposal of Permitted
Materials as and when such documentation is provided to any regulatory authority
and at such other time or times as Landlord may request. In no event shall
Tenant discharge or permit any Tenant Party to discharge any Hazardous Materials
into the plumbing or sewage system of the Building or Property. Tenant shall be
solely responsible for and shall defend, indemnify and hold Landlord harmless
from and against all Adverse Consequences arising out of or in connection with
the use, storage, handling, transportation, release or disposal of Hazardous
Materials by Tenant or any Tenant Party or Tenant's failure to comply with any
provision of this Section 4.11. Without limiting the foregoing, if any Hazardous
Materials stored, used, handled, transported, released or disposed of by Tenant
or any Tenant Party (collectively, "Tenant Hazardous Materials") results in
contamination or deterioration of air, water or soil at or under the Premises,
Building or Property, then Tenant shall promptly take any and all action
necessary to xxxxx and clean up such contamination or deterioration in
compliance with applicable Laws and otherwise to Landlord's satisfaction (but
the foregoing shall in no event be deemed to constitute permission by Landlord
to allow the presence of such Hazardous Materials).
(c) Upon the expiration or sooner termination of this Lease, Tenant,
at its sole expense, shall cause all Hazardous Materials released in or about
the Premises, or Property by Tenant or any Tenant Party, and all installations
(whether interior or exterior) made by or on behalf of Tenant relating to the
storage, use, disposal or transportation of Hazardous Materials, to be removed
from the Property and transported for use, storage or disposal in compliance
with all applicable Laws. Prior to the expiration or sooner termination of this
Lease, Tenant shall obtain from all appropriate governmental authorities all
permits, approvals and clearances necessary for the closure of Tenant's
operations at the Premises.
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(d) If at any time during the Lease Term Landlord has a reasonable
basis for suspecting the presence of Hazardous Materials in the Premises or in
connection with the purchase or financing of the Building, then, subject to
reasonable prior written notice, Landlord shall have the right (but not the
obligation) to enter the Premises to conduct tests to determine whether there
has been any release of Hazardous Materials in the Premises. Landlord shall
furnish copies of all such test results and reports to Tenant and, at Tenant's
option and cost, shall permit split sampling for testing and analysis by Tenant.
Such testing by Landlord shall be at Tenant's sole expense if Landlord has a
reasonable basis for suspecting and confirms the presence of Hazardous Materials
in the Premises which has been caused by Tenant or any Tenant Party.
(e) Landlord may voluntarily cooperate with the efforts of all
governmental agencies in reducing actual or potential environmental damage.
Tenant shall not be entitled to terminate this Lease or to any reduction in or
abatement of Rent by reason of such compliance or cooperation. Tenant agrees at
all times to cooperate with the reasonable requirements and recommendations of
governmental agencies regulating the protection of the environment as it
pertains to the Premises or Property.
(f) The provisions of this Section 4.11 shall survive the expiration
or sooner termination of this Lease.
4.12 RULES AND REGULATIONS. Landlord shall have the right from time to time
to establish reasonable rules and regulations (including amendments and/or
additions thereto) respecting the use of the Premises and Common Areas and
otherwise for the care and orderly management of the Property (collectively the
"Rules and Regulations"). Upon delivery to Tenant of a copy of such Rules and
Regulations, Tenant shall comply with (and cause all Tenant Parties to comply
with) such Rules and Regulations. A violation by Tenant of such Rules and
Regulations shall constitute a default by Tenant under this Lease, subject to
the notice and cure provisions of Section 12.1(b) below. If there is a conflict
between the Rules and Regulations and any provision of this Lease, the provision
of this Lease shall prevail. Landlord shall not under any circumstances be
responsible or liable to Tenant, any Tenant Party or anyone else for the
violation of the Rules and Regulations by any other tenant, occupant or user of
the Property. A copy of the initial Rules and Regulations established by
Landlord is attached hereto as EXHIBIT "F".
4.13 RESERVATIONS. Landlord reserves the right from time to time to grant,
without the consent or joinder of Tenant, such easements, rights-of-way and
dedications that Landlord deems necessary, and to cause the recordation of
parcel maps and restrictions, provided, however, in so doing, Landlord shall use
commercially reasonable efforts to minimize, to the extent reasonably
practicable under the circumstances, interference with Tenant's access to the
Premises or use of the reserved parking passes issued to Tenant under the
Parking License. Tenant agrees to execute any documents reasonably requested by
Landlord to effectuate any such easement rights, dedications, maps or
restrictions.
ARTICLE 5
REPAIRS, MAINTENANCE, SERVICES AND UTILITIES
5.1 REPAIR AND MAINTENANCE. Except in the case of damage to or destruction
of the Premises or Property caused by an act of God or other peril or resulting
from condemnation, in which case the provisions of Article 10 or Article 11, as
the case may be, shall control, the parties shall have the following obligations
and responsibilities with respect to the repair and maintenance of the Premises
and Property.
(a) Tenant's Obligations. Tenant shall, at its sole expense, in a
manner consistent with the Class A multi-tenant buildings of comparable age and
condition located in the Central Perimeter Market of Atlanta, Georgia, keep and
maintain in good order, condition and repair: (i) all interior portions of the
Premises including, without limitation, all electrical wiring that is
distributed from the electrical panels in the Premises, cabling, connectors and
fixtures of Tenant located inside the Premises (i.e., below the ceiling and on
or above the floor) and all interior walls, floors, ceilings, interior plate
glass, and doors located within the Premises; (ii) all cabling, electrical
wiring, and connectors, wherever located,
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used to operate or otherwise serving on an exclusive basis any equipment
(including, without limitation, any Supplemental Equipment, as defined in
Section 5.8 below), machinery, fixtures, or other Tenant's Property located
within the Premises or elsewhere on the Property; (iii) any Systems and
Equipment installed by, on behalf of, or exclusively for Tenant; and (iv)
Tenant's Property. In addition, Tenant shall, at its sole expense, repair all
damage to the Premises or Property caused by the activities of Tenant or any
Tenant Party promptly following written notice from Landlord to so repair such
damage. If after Landlord provides Tenant with notice as described in Section
12.1(b) below Tenant shall fail to perform the required maintenance or fail to
make repairs required of it pursuant to this Section 5.1(a), then Landlord may,
at its election and without waiving any other remedy it may otherwise have under
this Lease or at law or in equity, perform such maintenance or make such repairs
and charge to Tenant, as Additional Rent, the costs so incurred by Landlord for
same. All glass within or a part of the Premises (other than the exterior
Building windows) is at the sole risk of Tenant and any broken glass shall
promptly be replaced by Tenant at Tenant's expense with glass of substantially
the same kind, size and quality. All contractors and subcontractors engaged by
Tenant to perform maintenance or repairs on the Premises or Property shall be
subject to Landlord's prior written approval, not to be unreasonably withheld,
conditioned or delayed.
(b) Landlord's Obligations. Landlord shall, at all times during the
Lease Term, in a manner consistent with the Class A multi-tenant buildings of
comparable age and condition located in the Central Perimeter Market of Atlanta,
Georgia, maintain in good condition and repair: the foundation, floor slabs,
roof structure, load-bearing, and exterior walls of the Building; all exterior
Building windows; and all Systems and Equipment constructed or installed by
Landlord on the Property other than Systems and Equipment (including, without
limitation, any Supplemental Equipment) installed by, on behalf of, or
exclusively for Tenant; provided, however, that Tenant shall, at its sole
expense, repair all damage to the Premises or Property caused by the activities
of Tenant or any Tenant Party. The provisions of this Subsection (b) shall in no
way limit the right of Landlord to charge to Tenant, as Additional Rent pursuant
to Article 3 above (to the extent permitted pursuant to Article 3), the costs
incurred by Landlord in performing such maintenance and/or making such repairs.
There shall be no abatement of Rent and no liability of Landlord by reason of
any injury to or interference with Tenant's business arising from the making of
any repairs, alterations or improvements in or to any portion of the Building or
Property; provided, however, Landlord in the performance of such work agrees to
use commercially reasonable efforts to minimize, to the extent reasonably
practicable under the circumstances, interference with Tenant's operations in
the Premises. Commercially reasonable efforts shall not require Landlord to
schedule or perform any such work after Normal Business Hours (a) in the event
of casualty, condemnation, imminent harm to persons or damage to property, or
other emergency or (b) in the event that scheduling and performing such work
after Normal Business Hours would result in Additional Costs unless Tenant pays
for such Additional Costs. Tenant waives any right to make repairs at Landlord's
expense that Tenant may have under any statute, ordinance or other Law now or
hereafter in effect.
5.2 STANDARD TENANT SERVICES. Subject to Force Majeure events, and all
applicable Laws and governmental rules, guidelines, directives or policies,
Landlord shall provide the following services, unless otherwise indicated below:
(a) Landlord shall provide heating and air conditioning on a seasonal
basis for normal comfort for normal general office use in the Premises during
Normal Business Hours, in a manner consistent with the provision of such
services in Class A multi-tenant buildings of comparable age and condition
located in the Central Perimeter Market of Atlanta, Georgia.
(b) Landlord shall provide adequate electrical wiring and facilities
and during Normal Business Hours electricity for normal general office use
(which shall include seven (7) xxxxx per useable square foot (demand load) of
the Premises of electricity). Landlord shall designate the electricity and gas
utility provider(s) for the Building from time to time. Tenant shall not use
gas, water, electricity and/or other utilities or services in quantities that
exceed normal general office use and at no time shall use of electric current in
the Premises exceed the capacity of existing feeders and risers to or wiring in
the Premises. Without limiting the foregoing, Tenant's use of electrical service
shall not exceed, either in voltage, rated capacity, use beyond Normal Business
Hours or overall load, that which Landlord deems to
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be standard for the Building provided, however, that Tenant's use of seven (7)
xxxxx per usable square foot (demand load) of the Premises of electricity during
Normal Business Hours shall not be considered excessive use. If Tenant's use of
gas, water, electricity and/or other utilities or services is excessive, as
determined by Landlord based on a comparison of Tenant's use (established by
meter readings, engineering calculations or other commonly accepted methods) to
normal general office use by other office use tenants of the Building (or, if
there are no other tenants in the Building, other Class A multi-tenant office
buildings in the Central Perimeter Market of Atlanta, Georgia) who operate in
their space in accordance with the terms of their respective leases, Tenant
shall pay Landlord, as Additional Rent hereunder, the cost of such excessive use
within thirty (30) days after Tenant's receipt of Landlord's invoice therefor.
Landlord makes no representations or warranties, express or implied, as to the
adequacy or fitness of the electricity, gas, water or other utilities serving
the Premises or any other part of the Property. At Landlord's sole option,
Landlord may install at Tenant's expense electric meters or sub-meters to
measure the electricity actually consumed in all or a portion of the Premises at
any time.
(c) As part of Property Maintenance Costs or Landlord's Utilities
Costs (as determined by Landlord), Landlord shall replace lamps, starters and
ballasts for Building standard lighting fixtures within the Premises and Common
Areas. In addition, Tenant shall bear the cost of replacement of lamps, starters
and ballasts for non-Building standard lighting fixtures within the Premises.
(d) Landlord shall provide reasonable amounts of city water from the
regular Building outlets in the Premises for drinking, lavatory and toilet
purposes.
(e) Landlord shall provide janitorial services five (5) days per week,
except on Holidays to the Premises in accordance with the Janitorial
Specifications attached hereto as EXHIBIT "G".
(f) Landlord shall provide nonexclusive automatic passenger elevator
service to the floor on which the Premises are located, twenty-four (24) hours
per day/seven (7) days per week, during the Lease Term.
(g) Landlord shall provide nonexclusive freight elevator service to
the floor on which the Premises are located, subject to scheduling by Landlord.
5.3 OVERSTANDARD AND AFTER HOURS TENANT USE. Tenant shall not, without
Landlord's prior written consent, use heat-generating machines, or machines
other than normal office machines (such as desktop computers, laptop computers,
photocopiers, computer printers, scanners, fax machines and postage meters), or
equipment or lighting other than building standard lights in the Premises, which
may affect the temperature otherwise maintained by the air conditioning system
or increase the need for water normally furnished for the Premises by Landlord
pursuant to the terms of Section 5.2 of this Lease. If Tenant uses water, heat
or air conditioning in excess of the amount needed for normal general office
use, Tenant shall pay to Landlord, within thirty (30) days after billing as
Additional Rent, the cost of such excess consumption and the cost of the
installation, operation, and maintenance of equipment which is installed in
order to supply such excess consumption (all of the foregoing costs being
collectively referred to herein as "Increased Costs"). Landlord may also install
devices to separately meter any increased use. Tenant shall pay to Landlord, as
Additional Rent, within thirty (30) days after demand, the Increased Costs and
the cost of such additional metering devices. If Tenant desires to use heat or
air conditioning during hours other than Normal Business Hours, (i) Tenant shall
give Landlord (or its designee) telephonic notice or notice via computer codes
of Tenant's desired use at least four (4) hours in advance of the time Tenant
desires such heat or air conditioning to commence operation, (ii) Landlord shall
supply such heat or air conditioning to the Premises at such hourly cost to
Tenant as Landlord shall from time to time establish in its sole discretion,
such hourly cost to be based on the actual cost incurred by Landlord to supply
such after-hours heat and air conditioning on an hourly basis (but based on a
four (4) hour minimum provision of such after-hours heat and air conditioning),
and (iii) Tenant shall pay such cost within thirty (30) days after billing, as
Additional Rent. Landlord's current after Normal Business Hours charge for heat
and air conditioning service (which shall be subject to increase in Landlord's
sole discretion) is Forty Dollars ($40.00) per hour per floor.
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5.4 ADDITIONAL SERVICES. Landlord shall also have the right, but not the
obligation, to provide any additional services which may be requested by Tenant
including, without limitation, locksmithing, lamp replacement, additional
janitorial service, and additional repairs and maintenance, provided that Tenant
shall pay to Landlord as Additional Rent hereunder, within thirty (30) days of
billing, Landlord's costs in performing such additional services if requested by
Tenant and agreed to by Landlord plus a reasonable administration fee. Tenant
acknowledges and agrees that Landlord is obligated to provide only the standard
tenant services described in Section 5.2 above and the after Normal Business
Hours heat and air conditioning described in Section 5.3 above, on the terms and
conditions set forth in Sections 5.2 and 5.3 above, and that Landlord has made
no representations, warranties or promises whatsoever of any additional services
or amenities (including the continued operation of the existing cafeteria, which
Landlord may close or discontinue at any time) to be provided by Landlord now or
in the future under this Lease. Notwithstanding the foregoing, Tenant recognizes
that Landlord may, at Landlord's sole option, elect to provide additional
services or amenities for the tenants of the Building from time to time, and
hereby agrees that Landlord's discontinuance of any provision of any such
additional services or amenities shall not constitute a default of Landlord
under this Lease nor entitle Tenant to any abatement of or reduction in Rent
5.5 ENERGY AND RESOURCE CONSUMPTION. Landlord may voluntarily cooperate or
comply with the efforts or directives of governmental agencies and/or utility
suppliers in reducing energy or other resource consumption within the Property,
provided in the case of purely optional cooperation or compliance on the part of
Landlord such measures do not materially diminish the services to be provided by
Landlord under Section 5.2 above. Tenant shall not be entitled to terminate this
Lease or to any reduction in or abatement of Rent by reason of such compliance
or cooperation. Tenant agrees at all times to reasonably cooperate with Landlord
and to abide by all reasonable rules established by Landlord (a) in order to
maximize the efficient operation of the electrical, heating, ventilating and air
conditioning systems and all other energy or other resource consumption systems
with the Property, and/or (b) in order to comply with the requirements or
recommendations of utility suppliers and governmental agencies regulating the
consumption of energy and/or other resources.
5.6 LIMITATION OF LANDLORD'S LIABILITY. Landlord's obligations under
Sections 5.2(a) and 5.2(b) above shall not require it to utilize any back-up
generator(s) owned or operated by Landlord on the Property to provide the
services described in such Sections, even if the supply of electric current to
the Building from utility companies is halted, interrupted, or otherwise
curtailed. Landlord shall not be liable to Tenant for injury or harm to Tenant
or any Tenant Party or damage to the property of Tenant or any Tenant Party, nor
shall Tenant be entitled to terminate this Lease or to any reduction in or
abatement of Rent by reason of (a) Landlord's failure to provide security
services or systems (or its provision of inadequate security services or
systems) within the Property for the protection of the Premises, any other part
of the Property, Tenant's property, Tenant, or any Tenant Party; (b) Landlord's
failure to perform any maintenance or repairs to the Premises or any other part
of the Property which this Lease may expressly obligate Landlord to maintain or
repair until Tenant shall have first notified Landlord, in writing, of the need
for such maintenance or repairs, and then only after Landlord shall have had a
reasonable period of time following its receipt of such notice within which to
perform such maintenance or repairs; (c) any failure, interruption, rationing or
other curtailment in the supply of water, electric current, gas or other utility
service to the Premises or any other part of the Property when such failure,
interruption, rationing or other curtailment is occasioned, in whole or in part,
by repairs, replacements, or improvements, by any strike, lockout or other labor
trouble, by inability to secure electricity, gas, water, or other fuel at the
Building or Property, by any accident or casualty whatsoever, by act or default
of Tenant or any Tenant Party, or by any other cause whatsoever (other than
Landlord's sole, affirmative gross negligence or willful misconduct); (d) steam,
water, rain or snow, or other thing which may leak into, issue or flow from any
part of the Premises or Building (including the pipes, plumbing works or
sprinkler system (if any) in or serving the Premises or Building) or from any
other place, unless caused by Landlord's sole, affirmative gross negligence or
willful misconduct; (e) the condition or arrangement of any electric or other
wiring or of sprinkler heads (if any); or (f) the unauthorized intrusion or
entry into the Premises by third parties. Furthermore, Landlord shall not be
liable under any circumstances for injury to or interference with Tenant's
business (including, without limitation, loss of profits), however occurring,
whether by reason of the events described in clause (a) through (f) above or for
any other reason. Tenant hereby waives, to
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the fullest extent permitted by Law, any Adverse Consequences that it may have
against Landlord by reason of any of the matters described in clauses (a)
through (f) above.
Notwithstanding the foregoing, in the event Landlord fails to provide any
of the services required to be furnished by Landlord pursuant to Sections 5.2(a)
and 5.2(b) above for more than five (5) consecutive days, and as a result
thereof Tenant is unable to occupy the Premises for the operation of its
business in accordance with the Permitted Use and actually vacates the Premises,
then provided (i) Tenant is not in default hereunder beyond any applicable
notice and cure period set forth herein (if any), (ii) such failure to provide
services is the result of Landlord's acts or omissions, (iii) such failure to
provide services is not attributable, in whole or in part, to the acts or
omissions of Tenant or any Tenant Party, and (iv) such failure to provide
services is not attributable, in whole or in part, to any Force Majeure event,
then the Base Monthly Rent and any payments due under Section 3.2(a) above shall
be abated for each day such service(s) is/are not so provided commencing with
the day immediately following such ten (10) day period and ending on the earlier
of (i) the date such service(s) is/are restored or (ii) the date Tenant shall
reoccupy all or any portion of the Premises for the ordinary conduct of its
business.
5.7 SECURITY. Subject to (i) all of the terms and conditions of this Lease,
(ii) Force Majeure events, (iii) Landlord's Rules and Regulations with respect
to identification of Persons entering the Building and other procedures
regulating the manner in which access is gained to the Building, and (iv) the
requirements of applicable Laws and Private Restrictions, Tenant shall be
allowed access to the Premises twenty-four (24) hours per day, seven (7) days
per week during the Lease Term. During Normal Business Hours during the Lease
Term, Landlord agrees to provide unarmed security personnel in the Building's
lobby in a manner consistent with other Class A multi-tenant office buildings in
the Central Perimeter Market of Atlanta, Georgia. Tenant acknowledges and agrees
that Landlord has not undertaken any duty whatsoever to provide security for the
Premises or any other part of the Property (except as provided in the preceding
sentence) and that Landlord does not represent, warrant, covenant or provide any
other assurance that any security services provided by or on behalf of Landlord
will be adequate to protect Tenant or any Tenant Party or any property of Tenant
or any Tenant Party from loss, damage, injury or harm, and Tenant hereby
releases Landlord (and any Persons hired by Landlord to provide security
services to the Building) of and from, any and all Adverse Consequences, whether
in contract, tort or on any other basis, for any injury to or any damage or loss
sustained by Tenant or any Tenant Party, or any damage to Tenant's property,
resulting from or attributable in whole or in part to the inadequacy or
insufficiency of security personnel or services being provided by or on behalf
of Landlord. To the extent Tenant determines that security or protection
services are advisable or necessary with respect to the Premises, Tenant shall
arrange for and pay the costs of providing same. During the Lease Term, with
respect to the Building and parking structure entry doors designated for
Tenant's use, Tenant shall have use of the Building's card key or other access
system. Subject to Landlord's approval of the plans and specifications therefor
pursuant to the Work Letter, with respect to entry doors into the Premises and
within the Premises Tenant shall have the right to install its own security card
access system ("Tenant's Access/Security System") provided (a) such system does
not impair the operation or effectiveness of Landlord's access/security system
for the Building, and (b) Tenant provides Landlord with at least four (4)
security access cards (per floor) to Tenant's Access/Security System that will
allow Landlord to independently enter each floor of the Premises and all
interior portions thereof at all times. Tenant shall be solely responsible for
the repair, maintenance, monitoring, operation and removal of Tenant's
Access/Security System and shall reimburse Landlord (within thirty (30) days of
Landlord's written demand) for any costs incurred by Landlord to repair or
replace any damage to Landlord's access/security system caused by such tie in or
otherwise caused by Tenant or any Tenant Party. Landlord shall have no liability
whatsoever to Tenant or any Tenant Party for any failure or malfunction of
Tenant's Access Security System. Tenant shall pay for the costs of all access
cards provided to Tenant's employees and all replacements thereof for lost,
stolen or damaged cards, and shall be responsible for any Adverse Consequences
resulting from the same. Upon the expiration or sooner termination of this
Lease, Tenant shall return to Landlord all card keys or other keys previously
given to Tenant for access to the Premises and/or any other part of the
Building. Landlord shall have no liability whatsoever to Tenant or any Tenant
Party for any failure or malfunction of the Building's card key or other access
system serving the Premises and/or any other part of the Building. Access to the
Building and/or Property may be reasonably refused by Landlord unless the person
seeking access has proper identification or has a
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previously arranged pass for such access. Landlord and its agents shall not be
liable for damages for any error with regard to the admission to or exclusion
from the Building and/or Property of any Person, except for Landlord's willful
misconduct. In case of invasion, mob, riot, public excitement, or other
commotion, Landlord reserves the right to prevent access to the Building and/or
Property during the continuance of same by any means it deems appropriate for
the safety and protection of life and property.
5.8 TENANT'S SUPPLEMENTAL EQUIPMENT AND PDU; RAISED FLOORING. Tenant shall
have the right, at Tenant's sole expense, and subject to (a) approval by
Landlord of plans and specifications with respect thereto, (b) compliance with
Landlord's requirements with respect to the installation and operation thereof,
and (c) compliance with applicable Laws, to install in the Premises a
supplemental air conditioning unit (not to exceed ten (10) tons of cooling
capacity) and/or a power distribution unit [which may include reuse of the
existing ten (10) ton supplemental air-conditioning unit and the existing power
distribution unit (Model #PPA050C 3 phase, 480 volt, 63 max amps, 60 hertz)
presently located on the ninth (9th) floor of the Premises (collectively, the
"Existing Equipment)] (such air-conditioning unit, power distribution unit, and
any piping, wiring, connections, or other equipment associated therewith being
collectively referred to herein as the "Supplemental Equipment") for the purpose
of providing power distribution and cooling to any of the communications rooms
to be constructed by Tenant within the Premises and to connect such
air-conditioning unit to the "general" (but not the "blended") chilled water
loop servicing the Building. Tenant shall cause Tenant's Drawings (as defined in
the Work Letter) to include plans and specifications for the Supplemental
Equipment and its connection to the "general" chilled water loop servicing the
Building (the "General Loop"), which Tenant's Drawings shall be subject to
Landlord's prior written approval as provided in the Work Letter.
Notwithstanding anything to the contrary in the Work Letter or in this Lease,
Landlord may withhold its approval to Tenant's plans and specifications for the
Supplemental Equipment in Landlord's sole and unfettered discretion if Landlord
determines in its sole and unfettered discretion that the proposed Supplemental
Equipment will adversely effect the use, maintenance, or operation of the
General Loop, the Building's heating, ventilation and air condition systems,
and/or any other Systems and Equipment. The Supplemental Equipment shall be
considered part of the Initial Tenant Improvement Work and shall be installed in
accordance with, and subject to the terms and conditions of, the Work Letter;
provided, however, that (a) neither Tenant not any Tenant Party shall connect
(or attempt to connect) the Supplemental Equipment to the General Loop or any
other Systems and Equipment without at least three (3) business days' prior
written notice to Landlord and without a representative of Landlord in
attendance, and (b) Landlord shall have the sole and unfettered right to
determine the method and manner by which the Supplemental Equipment is connected
to the General Loop. Tenant, at its sole expense, shall (i) comply with all
applicable Laws regarding the installation, operation, maintenance, repair, use,
and removal of the Supplemental Equipment; (ii) shall be responsible for
obtaining and shall obtain and keep in full force and effect all permits,
licenses, and approvals necessary for the operation thereof; and (iii) be
responsible for the repair, maintenance and replacement (as necessary) of the
Supplemental Equipment (irrespective of any faults or defects as may exist
therein). As part of the Initial Tenant Improvement Work, Tenant shall cause
meters or sub-meters to be installed in the Premises (at locations and in
accordance with plans and specifications approved by Landlord) to measure the
electricity and chilled water actually used to operate the Supplemental
Equipment. Tenant shall pay to Landlord as Additional Rent within thirty (30)
days after written demand therefor the cost of the electricity and chilled water
used to operate the Supplemental Equipment as measured by such meters or
sub-meters (using the kilowatt rate then charged by the local utility company
plus Landlord's overhead administrative charge of three (3%) percent). Landlord
is providing Tenant with access to and the right to use the Existing Equipment
and the General Loop on a strictly "AS-IS", "WHERE-IS" basis; Landlord makes no
representations or warranties, express or implied, as to the suitability,
adequacy or fitness of the Existing Equipment and/or the General Loop for the
purpose of cooling the Premises, distributing power to any equipment in or
serving the Premises, operating the Supplemental Equipment or any other system
or equipment, or for any other purpose or use; and Landlord shall have no
liability whatsoever for any failure or malfunction of any of the Supplemental
Equipment.
When Landlord delivers the First Phase Premises to Tenant it will include
with the First Phase Premises all of the raised flooring that presently exists
therein (the "Raised Flooring"). Landlord is transferring ownership of the
Raised Flooring to Tenant on a strictly "AS-IS", "WHERE-IS" basis (inclusive
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of all faults and defects as may exist therein); Landlord makes no
representations or warranties, express or implied, as to the suitability,
adequacy or fitness of the Raised Flooring for the purpose of supporting any
particular equipment or load or for any other purpose; and Landlord shall have
no liability whatsoever for any failure or malfunction of any of the Raised
Flooring. If Tenant does not desire to keep all or any part of the Raised
Flooring, Tenant may demolish and remove it from the Building in accordance with
the terms of this Lease. Any of the Raised Flooring that Tenant elects to keep
within the First Phase Premises shall be considered Tenant's Property and shall
be kept and maintained in good condition and working order by Tenant at Tenant's
sole expense.
ARTICLE 6
ALTERATIONS AND IMPROVEMENTS
6.1 BY TENANT. This Section 6.1 shall not apply to the Initial Tenant
Improvement Work, which shall be governed exclusively by the Work Letter. Except
as specifically set forth herein, Tenant shall not make any alterations to or
modifications of the Premises or construct any improvements within the Premises
until Landlord shall have first approved, in writing, the plans and
specifications therefor, which approval shall not be unreasonably withheld,
conditioned or delayed by Landlord, except as to plans and specifications for
Prohibited Alterations (as defined below), the approval of which may be withheld
by Landlord in its sole and absolute discretion. As used herein, "Prohibited
Alterations" mean any alterations, modifications or improvements which may
affect the structural components of the Building or the Systems and Equipment or
which can be seen from (or may adversely affect any area) outside the Premises.
Landlord shall be deemed to have disapproved Tenant's proposed plans and
specifications if neither Landlord's written approval or disapproval is
delivered to Tenant within fifteen (15) days following Landlord's receipt of
Tenant's written request for approval. Landlord's approval may state that it
will require Tenant to remove the subject alterations, modifications or
improvements by the expiration or earlier termination of this Lease, in which
event Tenant shall be obligated to remove the subject alterations, modifications
or improvements by the expiration or earlier termination of this Lease. If
Landlord does not state in its approval that removal will be required, Landlord
shall be deemed to have elected to allow the subject alterations, modifications
or improvements to remain on the Premises at the expiration or earlier
termination of this Lease. All such modifications, alterations or improvements,
once so approved, shall be made, constructed or installed by Tenant at Tenant's
expense (including all permit fees and governmental charges related thereto),
using a licensed contractor first reasonably approved by Landlord, in
substantial compliance with the Landlord-approved plans and specifications
therefor. All work undertaken by Tenant shall be done in accordance with all
Laws and in a good and workmanlike manner using new materials of good quality.
Tenant shall not commence the making of any such alterations or modifications or
the construction of any such improvements until (a) all required governmental
approvals and permits shall have been obtained, (b) all requirements regarding
insurance imposed by this Lease have been satisfied, (c) Tenant shall have given
Landlord at least three (3) business days prior written notice of its intention
to commence such work so that Landlord may post and file notices of
non-responsibility, (d) if requested by Landlord, Tenant shall have obtained
contingent liability and broad form builder's risk insurance in an amount
satisfactory to Landlord in its reasonable discretion to cover any perils
relating to the proposed work not covered by insurance carried by Tenant
pursuant to Article 9, and (e) if requested by Landlord and Tenant is no longer
Xxxxxxxx & Company, require Tenant to obtain a payment and performance bond or
some alternate form of security satisfactory to Landlord in an amount sufficient
to ensure the lien-free completion of such alterations (other than PreApproved
Alterations) and naming Landlord as a co-obligee. In no event shall Tenant make
any alterations, modifications or improvements whatsoever to the Common Areas or
the exterior of the Building including, without limitation, any cuts or
penetrations in the floor or exterior walls of the Premises. Any core drilling
that Tenant desires to perform in connection with any alterations, modifications
or improvements consented to by Landlord pursuant to this Section 6.1 shall be
performed during other than Normal Business Hours. As used in this Article 6,
the term "alterations, modifications or improvements" shall include, without
limitation, the installation of additional electrical outlets, overhead lighting
fixtures, drains, sinks, partitions, doorways, or the like. Promptly after
completion of any alterations, modifications or improvements to the Premises,
Tenant shall deliver to Landlord a reproducible copy of the "as built" drawings
of the same, and if Landlord should request, evidence of payment, contractors'
affidavits and full and final waivers of all liens for labor, services or
materials used in the construction of such alterations,
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modifications or improvements. Tenant shall pay for all overhead, general
conditions, fees and other costs and expenses of any alterations, modifications
or improvements to the Premises.
All work performed by Tenant or any Tenant Party shall be performed so as
not to interfere with (a) the other tenants, occupants or users of the Building
(including Landlord) or their use or occupancy of the Building or Common Areas,
or (b) the owners, tenants, occupants, or users of any neighboring properties.
Tenant shall take all precautionary steps reasonably necessary to protect its
property, equipment and facilities and the property, equipment and facilities of
others affected by any of the work or activities to be performed by Tenant or
any Tenant Party, and shall make adequate provision for the safety and
convenience of the tenants, occupants or users of the Building (including
Landlord).
Notwithstanding the foregoing to the contrary, Landlord's prior consent
shall not be required with respect to any interior alterations, modifications or
improvements to the Premises (collectively, the "PreApproved Alterations") which
(i) are not Prohibited Alterations, and (ii) cost less than seventy-five
Thousand Dollars ($75,000.00) in the aggregate during any six (6) consecutive
month period, so long as (A) Tenant delivers to Landlord notice and copies of
all permits and final plans, specifications and working drawings (if any) for
any such alterations, modifications or improvements at least five (5) business
days prior to commencement of the work thereof, and (B) Tenant complies with the
requirements of this Section 6.1 (other than obtaining Landlord's prior written
consent).
6.2 OWNERSHIP OF IMPROVEMENTS. All modifications, alterations or
improvements made or added to the Premises by or for Tenant (including, without
limitation, the Initial Tenant Improvement Work), which shall not include
Tenant's trade fixtures, shall be deemed real property and a part of the
Premises immediately upon the construction or installation thereof, and Tenant
shall not attempt to grant a security interest in any such items to any Person.
Any such modifications, alterations or improvements, once completed, shall not
be altered or removed from the Premises during the Lease Term without Landlord's
written approval first obtained in accordance with the provisions of Section 6.1
above. At the expiration or sooner termination of this Lease, all such
modifications, alterations or improvements (including, without limitation, the
Initial Tenant Improvement Work) shall automatically become the property of
Landlord and shall be surrendered to Landlord as part of the Premises as
required pursuant to Section 2.3 above, unless Landlord shall require Tenant to
remove any of such modifications, alterations or improvements in accordance with
the provisions of Section 6.1 above, in which case Tenant shall so remove the
same. Landlord shall have no obligation to reimburse Tenant for all or any
portion of the cost or value of any such modifications, alterations or
improvements so surrendered to Landlord. All modifications, alterations or
improvements which are installed or constructed on or attached to the Premises
by Landlord or at Landlord's expense shall be deemed real property and a part of
the Premises and shall be property of Landlord. All lighting, plumbing,
electrical, heating, ventilating and air conditioning fixtures, partitioning,
window coverings, wall coverings and floor coverings installed by or for Tenant
shall be deemed improvements to the Premises and not trade fixtures of Tenant.
6.3 ALTERATIONS REQUIRED BY LAW. Tenant shall make all modifications,
alterations and improvements to the Premises, at its sole cost, that are
required by any Law because of (a) Tenant's particular use or occupancy of the
Premises or Property, (b) Tenant's application for any permit or governmental
approval, unless the modification, alteration or improvement is required because
on the Lease Commencement Date the Building failed to comply with a Law in
effect as of the Lease Commencement Date in the form enacted on the Lease
Commencement Date and as interpreted by the applicable governmental authority
with jurisdiction at such time, which failure was brought to the attention of
the applicable governmental authority as a result of Tenant's application, or
(c) the making of any modifications, alterations or improvements to or within
the Premises by or for Tenant. If at any time during the Lease Term Landlord
shall be required by any governmental authority to make any modifications,
alterations or improvements to the Building or the Property, the cost incurred
by Landlord in making such modifications, alterations or improvements shall be
considered a Property Maintenance Cost in accordance with Section 13.12(n)
below.
6.4 LIENS. Tenant shall keep the Property free from any liens arising out
of work or services performed, or materials purchased, by or on behalf of
Tenant, and Tenant shall pay when due all bills
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arising out of any work performed (including the Initial Tenant Improvement
Work), materials furnished, or obligations incurred by Tenant or any Tenant
Party relating to the Property. If any such claim of lien is recorded or filed
against Tenant's interest in this Lease or the Property, Tenant shall bond
against, discharge or otherwise cause such lien to be entirely released within
thirty (30) days after Tenant receives notice that the same has been recorded or
filed. Tenant's failure to do so shall constitute an Event of Default under the
terms of this Lease.
ARTICLE 7
ASSIGNMENT AND SUBLETTING BY TENANT
7.1 BY TENANT. Tenant shall not sublet the Premises or any portion thereof
or assign, encumber or otherwise transfer its interest in this Lease, whether
voluntarily or by operation of Law, without Landlord's prior written consent,
which shall not be unreasonably withheld. A voluntary assignment in accordance
with Section 7.9 below shall not require Landlord's consent. The acceptance of
rent by Landlord from any Person other than Tenant, or the acceptance of Rent by
Landlord from Tenant with knowledge of a violation of the provisions of this
Article 7, shall not be deemed to be a waiver by Landlord of any provision of
this Article 7 or this Lease or to be a consent to any subletting by Tenant or
any assignment, encumbrance or other transfer of Tenant's interest in this
Lease. Without limiting the circumstances in which it may be reasonable for
Landlord to withhold its consent to a proposed assignment or subletting,
Landlord and Tenant acknowledge and agree that it shall be reasonable for
Landlord to withhold its consent in the following instances:
(a) The proposed Transferee (as defined below) is a governmental
agency or possesses diplomatic or sovereign immunity;
(b) In Landlord's reasonable judgment, the Transferee is or will be
engaged in a business or activity at the Premises, or the Premises will be used
in a manner, that (1) is not in keeping with the then standards of the Building,
(2) is not for the Permitted Use, or (3) violates any restrictions set forth in
this Lease or in any mortgage and/or deed of trust affecting the Building or the
Property;
(c) The financial worth of the proposed Transferee does not meet the
reasonable credit standards of Landlord;
(d) The reputation and character of the proposed Transferee do not
meet the reasonable standards of Landlord;
(e) In Landlord's reasonable judgment, the proposed occupancy would
impose an additional material burden upon the Building systems or Landlord's
ability to provide services to the other tenants or occupants (including
Landlord) of the Building;
(f) The proposed Transferee (or any of its Affiliates) has, in the
five (5) years prior to the assignment or sublease, filed for bankruptcy
protection, has been the subject of an involuntary bankruptcy, or has been
adjudged insolvent;
(g) Landlord has experienced a previous material default by or is in
litigation with the proposed Transferee or any of its Affiliates;
(h) The use of the Premises by the proposed Transferee will violate
any applicable Laws;
(i) If there is space available in the Building for lease and the
proposed Transferee is either a (1) tenant in the Building or (2) a Person (or
Affiliate of a Person) with whom Landlord is then or has been within the prior
two (2) months negotiating in connection with the rental of space in the
Building, at the time of Tenant's request for consent or at the time the
proposed assignment or sublease will take effect the Transferee;
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(j) The proposed assignment or sublease fails to include all of the
terms and provisions required to be included therein pursuant to this Article 7;
(k) An Event of Default shall then exist or an Event of Default shall
have occurred on two (2) or more occasions during the twelve (12) months
preceding the date that Tenant shall request consent; or
(l) The proposed assignee or sublessee is Oracle Corporation or any
corporation or other entity that is controlled by Oracle Corporation
("controlled" by Oracle Corporation meaning a corporation or other entity that
is wholly owned by Oracle Corporation or at least fifty-one percent (51%) of
whose voting equity is owned by Oracle Corporation).
7.2 MERGER, REORGANIZATION, OR SALE OF ASSETS. Any dissolution, merger,
consolidation or other reorganization of Tenant, or the sale or other transfer
in the aggregate over the Lease Term of a controlling percentage of the capital
stock of Tenant, or the sale or transfer of all or a substantial portion of the
assets of Tenant, shall be deemed a voluntary assignment of Tenant's interest in
this Lease, except, and without limiting the provisions of Section 7.9 below,
that the foregoing shall not apply to the sale or other transfer in the
aggregate over the Lease Term of a controlling percentage of the capital stock
of Tenant if that stock is traded on the New York Stock Exchange, the American
Stock Exchange, the NASDAQ, any other nationally recognized United States stock
exchange. The phrase "controlling percentage" means the ownership of and the
right to vote stock possessing more than fifty percent (50%) of the total
combined voting power of all classes of Tenant's capital stock issued,
outstanding and entitled to vote for the election of directors. If Tenant is a
partnership, a withdrawal or change, voluntary, involuntary or by operation of
Law, of any general partner, or the dissolution of the partnership, shall be
deemed a voluntary assignment of Tenant's interest in this Lease. If Tenant is a
company whose stock is not traded on the New York Stock Exchange, the American
Stock Exchange, the NASDAQ, or any other nationally recognized United States
stock exchange, then upon Landlord's request from time to time (but not more
than once per calendar year unless the request is made in connection with the
sale or financing of the Building), Tenant shall promptly provide Landlord with
a statement certified by a senior officer of Tenant, which shall provide the
following information: (a) the names of all of Tenant's shareholders or other
equity owners owning more than fifteen percent (15%) of the outstanding
ownership interests and their ownership interests at the time thereof, provided
Tenant's shares are not publicly traded; (b) the state in which Tenant is
incorporated; (c) the location of Tenant's principal place of business; (d)
information regarding a material change in the corporate structure of Tenant,
including, without limitation, a merger or consolidation; and (e) any other
information regarding Tenant's ownership that Landlord reasonably requests.
7.3 LANDLORD'S ELECTION. If Tenant shall desire to assign, encumber or
otherwise transfer all or any part of its interest in this Lease or to sublet
the Premises or any portion thereof, Tenant must first notify Landlord, in
writing, of its intent to so sublet, assign, encumber or transfer, at least
thirty (30) days in advance of the date it intends to so assign, encumber or
otherwise transfer (collectively "transfer") all or any part of its interest in
this Lease or sublet the Premises or any portion thereof, but not sooner than
one hundred eighty (180) days in advance of such date, specifying in detail the
terms of such proposed transfer or subletting, including the name of the
proposed Transferee, the Transferee's intended use of the Premises, current and
two (2) prior years' financial statements (including a balance sheet, income
statement and statement of cash flow, all prepared in accordance with generally
accepted accounting principles or such other accounting standard or methodology
historically used by the Transferee and reasonably acceptable to Landlord) of
such proposed Transferee, the proposed form of documents to be used in
effectuating such transfer or subletting and such other information as Landlord
may reasonably request. Landlord shall have a period of fifteen (15) business
days following receipt of such notice and the required information within which
to do one of the following: (a) consent in writing to such requested transfer or
subletting subject to Tenant's compliance with the conditions set forth in
Section 7.4 below, or (b) refuse to consent to such requested transfer or
subletting. Landlord's failure within such fifteen (15) business day period to
provide Tenant with any of the responses described in clause (a) or (b) above
shall be deemed to constitute Landlord's withholding of consent to the proposed
transfer or subletting. During such fifteen (15) business day period, Tenant
covenants and agrees to supply to Landlord, upon
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request, all necessary or relevant information which Landlord may reasonably
request respecting such proposed transfer or subletting and the proposed
Transferee. Any transfer of Tenant's interest in this Lease or subletting of the
Premises or any part thereof in violation of this Article 7 shall, at Landlord's
sole option, be void and of no effect ab initio.
7.4 CONDITIONS TO LANDLORD'S CONSENT. If Landlord elects to consent, or
shall have been ordered to so consent by a court of competent jurisdiction, to
such requested transfer or subletting, such consent shall be expressly
conditioned upon the occurrence of each of the conditions below set forth, and
any purported transfer or subletting made or ordered prior to the full and
complete satisfaction of each of the following conditions shall be void and of
no effect. The conditions are as follows:
(a) Landlord having reasonably approved in form and substance the
transfer or sublease agreement.
(b) Each assignee having agreed in writing satisfactory to Landlord
and for the express benefit of Landlord, to assume, be bound by, and perform
Tenant's obligations under this Lease.
(c) Each sublessee having agreed, in writing satisfactory to Landlord
and for the express benefit of Landlord, to be bound by and subject to the terms
and conditions of this Lease.
(d) There being no default by Tenant in the performance of any of its
obligations hereunder.
(e) Tenant having reimbursed to Landlord all reasonable costs and
reasonably attorneys' fees actually incurred by Landlord in conjunction with the
processing and documentation of any such requested subletting or assignment, up
to a maximum of $3,000 per each request for Landlord's consent.
(f) Tenant having delivered to Landlord a complete and fully-executed
duplicate original of such sublease agreement or assignment agreement (as
applicable) and all related agreements.
(g) Tenant having paid, or having agreed in writing to pay as to
future payments, to Landlord fifty percent (50%) of all assignment consideration
or excess rentals (as defined below) to be paid to Tenant or to any other party
on Tenant's behalf or for Tenant's benefit for such assignment or subletting as
follows:
(i) If Tenant assigns its interest under this Lease and if all or
a portion of the consideration for such assignment is to be paid by the assignee
at the time of the assignment, that Tenant shall have paid to Landlord and
Landlord shall have received an amount equal to fifty percent (50%) of the
assignment consideration so paid or to be paid (whichever is the greater) at the
time of the assignment by the assignee; or
(ii) If Tenant assigns its interest under this Lease and if
Tenant is to receive all or a portion of the consideration for such assignment
in future installments, that Tenant shall have agreed in writing to pay to
Landlord an amount equal to fifty percent (50%) of all such future assignment
consideration installments to be paid by such assignee as and when such
assignment consideration is so paid.
(iii) If Tenant subleases the Premises, that Tenant and Tenant's
Transferee shall have agreed in writing to pay to Landlord fifty percent (50%)
of all excess rentals to be paid by such sublessee as and when such excess
rentals are so paid.
7.5 ASSIGNMENT CONSIDERATION AND EXCESS RENTALS DEFINED. For purposes of
this Article 7, the term "assignment consideration" shall mean all consideration
to be paid by the assignee to Tenant
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or to any other party on Tenant's behalf or for Tenant's benefit as
consideration for such assignment, after deducting any reasonable brokerage
commissions paid by Tenant in connection with the assignment, any improvement or
moving allowance paid by Tenant to the assignee as an inducement, the cost of
any alteration made by Tenant specifically for the benefit of the assignee as an
inducement, and any reasonable attorneys' fees incurred by Tenant to negotiate
and document the assignment; and the term "excess rentals" shall mean all
consideration to be paid by the sublessee to Tenant or to any other party on
Tenant's behalf or for Tenant's benefit for the sublease of all or any portion
of the Premises in excess of the Base Monthly Rent the amounts due under Section
3.2(a) above for the portion so subleased for the same period, after deducting
any reasonable brokerage commissions paid by Tenant in connection with the
sublease, any improvement allowance paid by Tenant to the sublessee, and any
reasonable attorneys' fees incurred by Tenant to negotiate and document the
sublease. Tenant agrees that the portion of any assignment consideration and/or
excess rentals arising from any assignment or subletting by Tenant which is to
be paid to Landlord pursuant to this Article 7 now is and shall then be the
property of Landlord and not the property of Tenant.
7.6 PAYMENTS. All payments required by this Article 7 to be made to
Landlord shall be made in cash in full as and when they become due. At the time
Tenant or Tenant's assignee or sublessee makes each such payment to Landlord,
Tenant shall deliver to Landlord a true, correct and itemized statement in
reasonable detail showing the method by which the amount due Landlord was
calculated and certified by Tenant as true and correct.
7.7 GOOD FAITH. The rights granted to Tenant by this Article 7 are granted
in consideration of Tenant's express covenant that all pertinent allocations
which are made by Tenant between the rental value of the Premises and the value
of any of Tenant's personal property which may be conveyed or leased generally
concurrently with and which may reasonably be considered a part of the same
transaction as the permitted assignment or subletting shall be made fairly,
honestly and in good faith. If Tenant shall breach this covenant, Landlord may
immediately declare Tenant to be in default under the terms of this Lease and
terminate this Lease and/or exercise any other rights and remedies Landlord
would have under this Lease in the case of a material default by Tenant under
this Lease.
7.8 EFFECT OF LANDLORD'S CONSENT; NO SUB-SUBLETTING. No assignment or other
transfer, and no subletting, even with the consent of Landlord, shall relieve
Tenant of its personal and primary obligation to pay Rent and to perform all of
the other obligations to be performed by Tenant hereunder. Consent by Landlord
to one or more assignments of Tenant's interest in this Lease or to one or more
sublettings of the Premises shall not be deemed to be a consent to any
subsequent assignment or subletting. Notwithstanding anything to the contrary in
this Article 7, Landlord may withhold its consent to any sublessee's further
subletting of the Premises or part thereof in Landlord's sole and absolute
discretion. If Landlord shall have been ordered by a court of competent
jurisdiction to consent to a requested assignment or subletting, or such as
assignment or subletting shall have been ordered by a court of competent
jurisdiction over the objection of Landlord, such assignment or subletting shall
not be binding between the assignee (or sublessee) and Landlord until such times
as all conditions set forth in Section 7.4 above have been fully satisfied (to
the extent not then satisfied) by the assignee or sublessee, including, without
limitation, the payment to Landlord of all agreed assignment considerations
and/or excess rentals then due Landlord.
7.9 PERMITTED TRANSFERS. Notwithstanding anything herein to the contrary,
the original named Tenant hereunder, Xxxxxxxx & Company may, without obtaining
Landlord's consent, assign its entire interest in this Lease to a corporation
into which Xxxxxxxx & Company shall be lawfully merged or consolidated (a
"Successor Entity"), or to an entity which acquires all or substantially all of
the assets of Xxxxxxxx & Company (an "Acquiring Entity"), or to an entity which
controls, is controlled by, or is under common control with Xxxxxxxx & Company
(a "Related Entity"); provided that in all of such cases, and as a condition to
the effectiveness thereof: (i) no Event of Default shall then exist nor shall
more than two (2) Events of Default have occurred in the preceding twelve (12)
month period; (ii) the principal purpose of such transaction is not the
acquisition of Xxxxxxxx & Company's interest in this Lease (unless the Acquiring
Entity shall be a Related Entity) and such transaction is not made to circumvent
the provisions of this Article 7; (iii) Landlord shall have received prior to
the effective date of the assignment, in the case
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of an assignment to a Related Entity, proof reasonably satisfactory to Landlord
that such assignee is a Related Entity; (iv) Landlord shall have received not
later than the effective date of such assignment, a duplicate original of the
assignment instrument; (v) Landlord shall have received prior to the effective
date of the assignment, an instrument in form and substance reasonably
satisfactory to Landlord, duly executed by Xxxxxxxx & Company and the assignee,
in which such assignee assumes (as of the date of such assignment) performance
of, and agrees to perform and be bound by, all of the terms, covenants and
conditions of this Lease on Tenant's part to be performed thereafter. Any
Successor Entity, Acquiring Entity or Related Entity to which Xxxxxxxx & Company
assigns its entire interest in this Lease in accordance with the terms and
conditions of this Section 7.9 shall be referred to herein as a "Successor
Assignee".
7.10 FEES INCURRED IN ASSIGNMENT AFTER BANKRUPTCY OF TENANT.
Notwithstanding anything in this Lease to the contrary, in the event this Lease
is assigned to any party pursuant to applicable Law after the filing of any
Bankruptcy by, for or against Tenant, no such assignment shall be valid or
effective unless and until all past due Rent (including late charges and default
interest) and costs and fees, including attorneys' and experts' fees, incurred
by Landlord directly or indirectly as a result of Tenant's bankruptcy are paid
to Landlord in full plus interest thereon at the Default Rate.
ARTICLE 8
LIMITATION ON LANDLORD'S LIABILITY AND INDEMNITY
8.1 LIMITATION ON LANDLORD'S LIABILITY AND RELEASE. Landlord shall not be
liable to Tenant for, and Tenant hereby releases Landlord of and from, any and
all Adverse Consequences, whether in contract, tort or on any other basis, for
any injury to or any damage or loss sustained by Tenant or any Tenant Party, or
any damage to Tenant's property, resulting from or attributable in whole or in
part to the condition of, the management of, the repair or maintenance of, the
protection of, the supply of services or utilities to, the damage in or
destruction of the Premises or Property including, without limitation (a) the
failure, interruption, rationing or other curtailment or cessation in the supply
of electricity, water, gas, chilled water or other utility service to the
Premises or Property, except when Landlord has failed to pay its bills for such
utility services which in turn causes the utility company to turn off the
utility service; (b) the vandalism or forcible entry into the Premises or
Building; (c) the penetration of water into or onto any portion of the Premises
or Building; (d) the failure to provide security or adequate lighting in or
about the Premises or Property, (e) the existence of any design or construction
defects within the Building or Property; (f) the failure of any mechanical
system in or serving the Premises or Building to function properly (such as the
HVAC systems); (g) the blockage of access to any portion of the Building or
Property; provided, however that nothing in this sentence shall be deemed to
release Landlord from such liability to the extent such loss or damage was
proximately caused by Landlord's active gross negligence or willful misconduct.
No matter what the cause, under no circumstances shall Landlord be liable for
any loss to Tenant's business, loss of Tenant's profits or other financial loss
or consequential damages of Tenant.
8.2 INDEMNIFICATION. Subject to the terms of Section 9.3 below, Tenant
shall defend Landlord and each Lender from any claims or demands made against
Landlord and/or any Lender, or legal actions, suits or proceedings filed or
threatened against Landlord and/or any Lender with respect to the violation of
any Law, or the death, bodily injury, personal injury, property damage suffered
by any Person occurring within the Premises or resulting from the use or
occupancy of the Premises or Property (including the parking structure and other
Common Area) by Tenant or any Tenant Party, or resulting from the activities
(whether or not negligent) of Tenant or any Tenant Party in or about the
Premises or Property (including the parking structure and other Common Area),
and Tenant shall indemnify and hold Landlord harmless from and against any
Adverse Consequences suffered or incurred by Landlord and/or any Lender
resulting directly or indirectly from any of the foregoing, except to the extent
proximately caused by the active gross negligence or willful misconduct of
Landlord. Subject to the terms of Section 9.3 below, Landlord shall indemnify,
defend and hold Tenant harmless from and against any Adverse Consequences
(excluding consequential damages) suffered by Tenant as a result of third party
claims against Tenant resulting from any accident, injury or damage caused to
any person or the property of any person on or about the Common Area to the
extent such accident, injury or damage is proximately
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caused by the active gross negligence or willful misconduct of Landlord
occurring after the Lease Commencement Date. The provisions of this Article 8
shall survive the expiration or sooner termination of this Lease
ARTICLE 9
INSURANCE
9.1 TENANT'S INSURANCE. Tenant shall maintain insurance complying with all
of the following:
(a) Tenant shall procure, pay for and keep in full force and effect,
at all times during the Lease Term, the following:
(i) Commercial general liability insurance jointly insuring
Tenant against liability for personal injury, bodily injury, death and damage to
property occurring within the Premises, or resulting from Tenant's use or
occupancy of the Premises, the Building, the Common Areas or the Property, or
resulting from Tenant's activities in or about the Premises or the Property,
with coverage in an amount equal to Tenant's Required Liability Coverage, which
insurance shall contain "blanket contractual liability" and "broad form property
damage" endorsements insuring Tenant's performance of Tenant's obligation to
indemnify Landlord as contained in this Lease.
(ii) Fire and property damage insurance in so-called "causes of
loss-special form" insuring Tenant against loss from physical damage to Tenant's
personal property, inventory, trade fixtures, equipment, alterations and
improvements within or to the Premises (including the Initial Tenant
Improvements) with coverage for the full actual replacement cost thereof with a
deductible not to exceed Twenty-Five Thousand Dollars ($25,000) per occurrence;
(iii) Business income/extra expense insurance sufficient to pay
Base Monthly Rent and Additional Rent for a period of not less than six (6)
months;
(iv) Plate glass insurance (at actual replacement cost);
(v) Workers' compensation insurance (statutory coverage) and
employer's liability insurance having coverage of not less than Two Million
Dollars ($2,000,000) per occurrence, in each case sufficient to comply with all
Laws; and
(vi) With respect to making of any alterations or modifications
or the construction of improvements or the like undertaken by Tenant, course of
construction, "builders risk," commercial general liability, automobile
liability and workers' compensation (to be carried by Tenant's contractor), in
an amount and with coverage reasonably satisfactory to Landlord.
(b) Each policy of liability insurance required to be carried by
Tenant pursuant to this Article 9: (i) shall, except with respect to insurance
required by Subsection (a)(v) above, name Tenant as insured and name Landlord,
Landlord's property manager (if designated in writing by Landlord), any Lender
(as defined below) designated by Landlord, and any other Person reasonably
designated by Landlord, as additional insureds; (ii) shall be primary insurance
providing that the insurer shall be liable for the full amount of the loss, up
to and including the total amount of liability set forth in the declaration of
coverage, without the right of contribution from or prior payment by any other
insurance coverage of Landlord; (iii) shall not contain any cross-liability
exclusions or intra-insured exclusions as between insured persons or
organizations; (iv) shall contain shall a so-called "severability" or "cross
liability" endorsement as well as endorsements deleting any employee exclusion
on personal injury coverage and adding (if not covered by the policy) fire legal
liability coverage; (v) shall be carried with companies reasonably acceptable to
Landlord having a "Best's Rating" of "A" or better and a "Financial Size
Category" of at least "IX"; (vi) shall provide that such policy shall not be
subject to cancellation, lapse or change except after at least thirty (30) days
prior written notice to Landlord, and (vii) shall otherwise be in a form
reasonably satisfactory to Landlord. Each policy of property insurance
maintained by Tenant with
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respect to the Premises or the Property or any property therein (i) shall
provide that such policy shall not be subject to cancellation, lapse or change
except after at least thirty (30) days prior written notice to Landlord and (ii)
shall contain a waiver and/or a permission to waive by the insurer of any right
of subrogation against Landlord, its partners, members, officers, employees,
stockholders, agents and contractors, which might arise by reason of any payment
under such policy or by reason of any act or omission of Landlord or such other
persons. The limits of the policies of insurance required to be carried by
Tenant pursuant to this Article 9 shall not limit the liability of Tenant or
relieve Tenant of any obligation under this Lease.
(c) Prior to the time Tenant or any of its contractors enters the
Premises, and from time to time upon written request by Landlord, Tenant shall
deliver to Landlord, with respect to each policy of insurance required to be
carried by Tenant pursuant to this Section 9.1, a copy of such policy
(appropriately authenticated by the insurer as having been issued, premium paid)
or a certificate of the insurer (which for property insurance shall be at least
in the form of XXXXX 27, but not simply XXXXX 25) certifying in form reasonably
satisfactory to Landlord that a policy has been issued, premium paid, providing
the coverage required by this Section 9.1 and containing the provisions
specified herein. If Tenant shall fail to procure such policies of insurance, or
to deliver such policies or certificates, as and when required hereunder,
Landlord may, at its option, in addition to all of its other rights and remedies
under this Lease, and without regard to any notice and cure periods set forth in
Section 12.1(b) below, upon three (3) business day's written notice to Tenant,
procure such policies for the account of Tenant, and the cost thereof shall be
paid to Landlord as Additional Rent within thirty (30) days after delivery of a
bills therefore. With respect to each renewal or replacement of any such
insurance, the requirements of this Section 9.1 must be complied with not less
than twenty (20) days prior to the expiration or cancellation of the policies
being renewed or replaced. If at any time during the Lease Term the amount of
coverage or type of insurance which Tenant is required to carry under this
Article 9 is, in Landlord's reasonable judgment or Lender's sole judgment, less
than or other than the amount or type of insurance typically required by
landlords of other Class A multi-tenant office buildings of comparable age and
condition located in the Central Perimeter Market of Atlanta, Georgia, Landlord
shall have the right to require Tenant to increase the amount or change or add
to the insurance required of Tenant under this Article 9 in order to correspond
to the coverages or types of insurance typically required by landlords of other
Class A multi-tenant office buildings of comparable age and condition located in
the Central Perimeter Market of Atlanta, Georgia.
9.2 LANDLORD'S INSURANCE. With respect to insurance maintained by Landlord:
(a) Landlord shall maintain, as the minimum coverage required of it by
this Lease, fire and property damage insurance in so-called "causes of
loss-special form" insuring Landlord (and such others as Landlord may designate)
against loss from physical damage to the Building with coverage of not less than
one hundred percent (100%) of the replacement cost thereof. Such fire and
property damage insurance, at Landlord's election but without any requirement on
Landlord's part to do so, (i) may be written so as to exclude those perils
commonly excluded from such coverage by Landlord's then property damage insurer;
and (ii) may be endorsed to cover loss or damage caused by any additional perils
against which Landlord may elect to insure, including terrorism, pollution or
contamination, earthquake and/or flood; and/or (iii) may provide coverage for
loss of Rents for a period of up to twelve (12) months. Landlord shall not be
required to cause such insurance to cover any of Tenant's Property or any
modifications, alterations or improvements (including, without limitation, the
Initial Tenant Improvement Work) made or constructed by or for Tenant to or
within the Premises.
(b) Landlord shall maintain commercial general liability insurance
insuring Landlord (and such others as are designated by Landlord) against
liability for personal injury, bodily injury, death, and damage to property
occurring in, on or about, or resulting from the use or occupancy of the
Property, or any portion thereof, with combined single limit coverage of at
least Two Million Dollars ($2,000,000.00). Landlord may carry such greater
coverage as Landlord or Landlord's Lender, insurance broker, advisor or counsel
may from time to time determine is reasonably necessary for the adequate
protection of Landlord and the Property.
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(c) Landlord may maintain any other insurance which in the opinion of
its insurance broker, advisor or legal counsel is prudent to carry under the
given circumstances, provided such insurance is commonly carried by owners of
property similarly situated and operating under similar circumstances.
9.3 MUTUAL WAIVER OF SUBROGATION. Landlord hereby releases Tenant and its
officers, directors, employees and agents, and Tenant hereby releases Landlord
and its officers, directors, employees and agents, from any and all liability
for loss, damage or injury to the property of the other in or about the Premises
or the Property which is caused by or results from a peril, which is covered by
property insurance (a) actually carried and in force at the time of the loss of
the party sustaining such loss or (b) required by this Article 9 to be carried
and in force at the time of the loss of the party sustaining such loss. Landlord
and Tenant each agrees that any fire and property damage insurance policy
required to be carried it under this Article 9 will include such a clause or
endorsement.
ARTICLE 10
DAMAGE TO PREMISES
10.1 LANDLORD'S DUTY TO RESTORE. If the Premises, the Building or the
Common Areas are damaged by any peril after the Lease Commencement Date,
Landlord shall restore the same, as and when required by this Section 10.1,
unless this Lease is terminated by Landlord pursuant to Section 10.3 or by
Tenant pursuant to Section 10.4. If this Lease is not so terminated, then upon
the issuance of all necessary governmental permits, Landlord shall commence and
prosecute, subject to Force Majeure, the restoration of the Premises, Building
or Common Areas, as the case may be, to the extent then allowed by Law, to
substantially the same condition in which it existed as of the Lease
Commencement Date. Landlord's obligation to restore shall be limited to the
improvements originally constructed by Landlord. Notwithstanding anything to the
contrary herein, Landlord shall have no obligation to restore any alterations,
modifications or improvements (including, without limitation, the Initial Tenant
Improvement Work) made to the Premises by or on behalf of Tenant or to restore
any of Tenant's Property, and no damages, compensation or claim shall be payable
by Landlord for inconvenience, loss of business or annoyance suffered by Tenant
as a result of any repair or restoration of any portion of the Premises or
Property performed by or on behalf of Landlord. Upon completion of the
restoration of the Premises by Landlord, Tenant shall forthwith replace or fully
repair all of Tenant's Property and any alterations, modifications or
improvements constructed by or on behalf of Tenant (including, without
limitation, the Initial Tenant Improvement Work) to substantially the same
condition as existed at the time immediately prior to such damage or destruction
or to such other conditions as Landlord may, in its sole and absolute
discretion, then approve in writing.
10.2 INSURANCE PROCEEDS. All insurance proceeds available from any fire and
property damage insurance carried by Landlord, if any, shall be paid to and
remain the property of Landlord. If this Lease is terminated pursuant to either
Section 10.3 or 10.4 below, all insurance proceeds available from insurance
carried by Tenant which cover loss of property that is Landlord's property or
would become Landlord's property on termination of this Lease (such as the
Initial Tenant Improvement Work) shall be paid to and become the property of
Landlord, and the remainder of such proceeds shall be paid to and become the
property of Tenant. If this Lease is not terminated pursuant to either Section
10.3 or 10.4 below, all insurance proceeds available from insurance carried by
Tenant which cover loss to property that is Landlord's property shall be paid to
and become the property of Landlord, and all proceeds available from such
insurance which cover loss to property which would only become the property of
Landlord upon the termination of this Lease (such as the Initial Tenant
Improvement Work) shall be paid to and remain the property of Tenant. The
determination of Landlord's property and Tenant's property shall be made
pursuant to Section 6.2 above.
10.3 LANDLORD'S RIGHT TO TERMINATE. Landlord shall have the option to
terminate this Lease in the event any of the following occurs, which option may
be exercised only by delivery to Tenant of a written notice of election to
terminate within sixty (60) days after the date of such damage or destruction:
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(a) The whole or a substantial portion of the Building (including
premises other than the Premises) is rendered untenantable in Landlord's good
faith estimation and Landlord elects to terminate the leases of all other
tenants of the Building similarly affected by the damage and whose leases give
Landlord the right to terminate the applicable leases without charge or penalty;
(b) The whole or a substantial portion of the Premises is rendered
untenantable in Landlord's good faith estimation and cannot be restored within
twelve (12) months from the date of the damage in Landlord's good faith
estimation;
(c) The Building is damaged by an uninsured peril, which peril
Landlord was not required to insure against by reason of Section 9.2(a) above
and Landlord elects to terminate the leases of all other tenants of the Building
similarly affected by the damage and whose leases give Landlord the right to
terminate the applicable leases without charge or penalty;
(d) The Building is damaged by any peril and, because of the Laws then
in force, the Building (i) cannot be restored at reasonable cost (unless
Landlord receives insurance proceeds sufficient to cover the actual cost) or
(ii) if restored, cannot be used for the same use being made thereof before such
damage; or
(e) The damage occurs during the last twelve (12) months of the Lease
Term and affects the Premises unless Tenant previously exercised its option to
extend the Lease Term in accordance with Article 15 below or within thirty (30)
days of the damage Tenant exercises its option to extend the Lease Term in
accordance with Article 15 below (provided the period for Tenant's exercise
under Article 15 below has not previously lapsed).
If Landlord terminates this Lease in accordance with this Section 10.3, such
termination shall be effective on the date specified in Landlord's termination
notice, which date cannot be less than five (5) nor more than thirty (30) days
after the date Landlord delivers its termination notice to Tenant.
10.4 TENANT'S RIGHT TO TERMINATE. If the Premises, the Building or the
Common Areas are damaged by any peril and Landlord does not elect to terminate
this Lease or is not entitled to terminate this Lease pursuant to this Article
10, then as soon as reasonably practicable under the circumstances, Landlord
shall furnish Tenant with the written opinion of Landlord's architect or
construction consultant as to when the restoration work required of Landlord may
be completed. Tenant shall have the option to terminate this Lease in the event
any of the following occurs, which option may be exercised only by delivery to
Landlord of a written notice of election to terminate within fifteen (15)
business days after Tenant receives from Landlord such estimate of the time
needed to complete such restoration (which termination shall be effective on the
date specified in such notice from Tenant, which date cannot be less than five
(5) nor more than thirty (30) days after the date Tenant delivers its
termination notice to Landlord):
(a) If the time estimated to substantially complete the restoration
exceeds fourteen (14) months from and after the date of the casualty; or
(b) If the damage occurs within fourteen (14) months of the last day
of the Lease Term and the time estimated to substantially complete the
restoration exceeds one hundred eighty (180) days from and after the date of the
casualty.
In addition, if within fourteen (14) months after the date of the casualty, the
Premises shall not have been substantially restored as provided under Section
10.1 above, Tenant may terminate this Lease by written notice to Landlord given
within sixty (60) days after the end of such fourteen (14) month period, unless
Landlord shall substantially restore the Premises as provided under Section 10.1
above prior to the end of such sixty (60) day period and shall notify Tenant of
the same during such sixty (60) day period. If Tenant terminates this Lease in
accordance with the preceding sentence, such termination shall be effective on
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the date specified in Tenant's termination notice, which date cannot be less
than five (5) nor more than thirty (30) days after the date Tenant delivers its
termination notice to Landlord.
10.5 WAIVER. The provisions of this Article 10 shall be considered an
express agreement governing any instance of damage or destruction of the
Building or the Premises by fire or other casualty, and any Laws now or
hereafter in force providing for such a contingency in the absence of express
agreement shall have no application, and the parties hereby waive the provisions
of any such Laws.
10.6 ABATEMENT OF RENT. In the event of damage to the Premises which does
not result in the termination of this Lease, provided the damage was not caused
by Tenant or any Tenant Party, only the Base Monthly Rent and the amount due
under Section 3.2(a) above shall be temporarily abated from and after the date
of the casualty until Landlord's restoration is complete and Tenant has had a
reasonably sufficient time, not to exceed ninety (90) days from the date
Landlord completes its Tenant's restoration, to complete Tenant's restoration
work. Such abatement shall be in proportion in the degree to which Tenant's use
of the Premises is impaired by such damage.
10.7 EFFECT OF TERMINATION. If Tenant or Landlord shall terminate this
Lease in accordance with the provisions of this Article 10, the Lease Term shall
expire upon the date specified in the applicable termination provision of this
Article 10 as fully and completely as if such date were the Lease Expiration
Date and Tenant shall forthwith quit, surrender and vacate the Premises in
accordance with the terms of this Lease without prejudice, however, to either
party's rights against the other under the provisions hereof in effect prior to
such termination or which by the express terms of this Lease survive
termination, and any Rent owing shall be paid up to the date of termination (it
being acknowledged that if the date of the casualty shall not be the first day
of a month, the Rent shall be prorated on a per diem basis) and any payments of
Rent made by Tenant which were on account of any period subsequent to such date
shall be returned to Tenant.
ARTICLE 11
CONDEMNATION
11.1 TENANT'S RIGHT TO TERMINATE. Except as otherwise provided in Section
11.4 below regarding temporary takings, Tenant shall have the option to
terminate this Lease if, as a result of any taking, (a) all of the Premises is
taken, (b) twenty-five percent (25%) or more of the Premises is taken and the
part of the Premises that remains cannot, within a reasonable period of time, be
made reasonably suitable for the continued operation of Tenant's business, (c)
the Premises may not be used for general office purposes under the current Laws,
(d) so much of the Building is taken that the remainder of the Building is no
longer reasonably suitable for the uses for which it was designed, or (e) more
than twenty five percent (25%) of the parking spaces in the parking structure
serving the Building are taken and Landlord is unable to provide Tenant with
substantially the same number of parking spaces available to Tenant under the
terms of this Lease immediately prior to the taking at a location reasonably
proximate to the Building. Tenant must exercise such option within a reasonable
period of time, to be effective on the later to occur of (i) the date that
possession of that portion of the Premises that is condemned is taken by the
condemnor or (ii) the date Tenant vacated the Premises.
11.2 LANDLORD'S RIGHT TO TERMINATE. Except as otherwise provided in Section
11.4 below regarding temporary takings, Landlord shall have the option to
terminate this Lease if, as a result of any taken, (a) all of the Premises is
taken, (b) twenty-five percent (25%) or more of the Premises is taken and the
part of the Premises that remains cannot, within a reasonable period of time, be
made reasonably suitable for the continued operation of Tenant's business, (c)
because of the Laws then in force, the Premises may not be used for the same use
being made before such taking, whether or not restored as required by Sections
11.3 below, (d) twenty percent (20%) or more of the floor area contained in the
Building is taken, or (e) if parking spaces in the parking structure serving the
Building are taken reducing the number of parking spaces to less than the number
required by Law. Any such option to terminate by Landlord must be exercised
within a reasonable period of time to be effective as of the date possession is
taken by the condemnor.
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11.3 RESTORATION. If any part of the Premises, Building or Common Area is
taken and this Lease is not terminated, then Landlord shall, to the extent not
prohibited by the Laws then in force, repair any damage occasioned thereby to
the remainder thereof to a condition reasonably suitable for Tenant's continued
operations and otherwise, to the extent practicable, in the manner and to the
extent provided in Section 10.1. Notwithstanding the foregoing, Landlord, in
effecting such repairs, shall not be required to spend more than the amount of
the condemnation proceeds received by Landlord. If any part of the Premises is
taken, this Lease is not terminated, and Landlord repairs any damage occasioned
by such taking, Base Monthly Rent and the amount due under Section 3.2(a) above
shall temporarily xxxxx during the period of Landlord's repairs in proportion in
the degree to which Tenant's use of the Premises is impaired by Landlord's
repairs to the Premises.
11.4 TEMPORARY TAKING. If a portion of the Premises is temporarily taken
for a period of one year or less and such period does not extend beyond the
Lease Expiration Date, this Lease shall remain in effect. If any portion of the
Premises is temporarily taken for a period which exceeds one year or which
extends beyond the Lease Expiration Date, then the rights of Landlord and Tenant
shall be determined in accordance with Sections 11.1 and 11.2 above.
11.5 DIVISION OF CONDEMNATION AWARD. The entirety of any award made for any
taking of the Property or any portion thereof shall belong exclusively to and be
paid exclusively to Landlord, and Tenant hereby assigns to Landlord all of its
right, title and interest in and to any such award; except that Tenant shall
have the right to file any separate claim available to Tenant for any taking of
Tenant's equipment, personal property and fixtures belonging to Tenant and
removable by Tenant upon the Lease Expiration Date pursuant to the terms of this
Lease, for the unamortized cost of leasehold improvements installed in the
Premises at Tenant's expense, and for moving expenses, so long as such claim
does not diminish the award available to Landlord, its ground lessor with
respect to the Property (if any), or any Lender, and such claim is payable
separately to Tenant. The rights of Landlord and Tenant regarding any
condemnation shall be determined as provided in this Article 11, and each party
hereby waives the provisions of any Law now in effect or hereinafter enacted
allowing either party to terminate this Lease or otherwise allocate condemnation
awards between Landlord and Tenant in the event of a taking of the Premises.
11.6 ABATEMENT OF RENT. In the event of a taking of the Premises which does
not result in a termination of this Lease, then, as of the date possession is
taken by the condemning authority, the Base Monthly Rent shall be reduced in the
same proportion that the area of that part of the Premises so taken (less any
addition to the area of the Premises by reason of any reconstruction) bears to
the area of the Premises immediately prior to such taking. If this Lease is
terminated pursuant to this Article 11, Rent shall be apportioned as of the date
possession of the Premises is taken by the condemning authority.
11.7 TAKING DEFINED. The term "taking" or "taken" as used in this Article
11 shall mean any transfer or conveyance of all or any portion of the Property
to a public or quasi-public agency or other entity having the power of eminent
domain pursuant to or as a result of the exercise of such power by such an
agency, including any inverse condemnation and/or any sale or transfer by
Landlord of all or any portion of the Property to such an agency under threat of
condemnation or the exercise of such power.
ARTICLE 12
DEFAULT AND REMEDIES
12.1 EVENTS OF TENANT'S DEFAULT. Tenant shall be in material default of its
obligations under this Lease if any one or more of the following events
(individually, an "Event of Default"; collectively "Events of Default") occur:
(a) Tenant shall have failed to pay any Base Monthly Rent or any
Additional Rent when due, and such failure shall continue for ten (10) days
after Landlord delivers written notice of such failure to Tenant; provided,
however, if Landlord has given such written notice on two (2) occasions during
the immediately preceding twelve (12) month period, failure to pay any Base
Monthly Rent or any
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Additional Rent when due shall constitute an Event of Default without any notice
required to be given by Landlord;
(b) Tenant shall have violated any term or provision of Article 7 and
failed to cure the same within five (5) days after written notice of such
violation from Landlord;
(c) Tenant shall have failed to execute and deliver an estoppel
certificate within the time frame specified in Section 13.6 below, and such
failure shall continue for five (5) business days after written notice of such
failure to Tenant;
(d) Tenant shall have failed to execute and deliver any document or
instrument required to be delivered by Tenant under Section 13.3 below within
the time frames specified in Section 13.3, and such failure shall continue for
five (5) business days after written notice of such failure to Tenant;
(e) If Landlord applies or retains any part of the Security Deposit,
and Tenant shall have failed to deposit with Landlord in cash the amount so
applied or retained, or to provide Landlord with a replacement Letter of Credit
(as defined below) in the full amount of the Security Deposit, as applicable,
within five (5) days after notice by Landlord to Tenant stating the amount
applied or retained;
(f) Tenant shall have failed to perform any term, covenant or
condition of this Lease (other than a default described in Subsection (a), (b),
(c), (d), (e) or (f) above) or shall have done or permitted any Tenant Party to
have done any act or thing on the Property that is not cured within thirty (30)
days after written notice from Landlord to Tenant specifying the nature of such
default; provided, however, that if such default cannot reasonably be cured
within said thirty (30) day period, then Tenant shall have such additional time
as may reasonably be necessary to cure the breach (not to exceed a further sixty
(60) days) so long as Tenant commences cure of such default within the original
thirty (30) day period and thereafter diligently pursues the same to completion
within said further sixty (60) day period;
(g) Tenant or any guarantor of this Lease shall have permitted or
suffered the sequestration or attachment of, or execution on, or the appointment
of a custodian or receiver with respect to, all or any substantial part of the
property or assets of Tenant (or such guarantor) or any property or asset
essential to the conduct of Tenant's (or such guarantor's) business, and Tenant
(or such guarantor) shall have failed to obtain a return or release of the same
within thirty (30) days thereafter, or prior to sale pursuant to such
sequestration, attachment or levy, whichever is earlier;
(h) Tenant or any guarantor of this Lease shall have made a general
assignment of all or a substantial part of its assets for the benefit of its
creditors;
(i) Tenant or any guarantor of this Lease shall have allowed (or
sought) to have entered against it a decree or order which: (i) grants or
constitutes an order for relief, appointment of a trustee, or condemnation or a
reorganization plan under the bankruptcy Laws of the United States; (ii)
approves as properly filed a petition seeking liquidation or reorganization
under said bankruptcy Laws or any other debtor's relief law or similar statute
of the United States or any state thereof; or (iii) otherwise directs the
winding up or liquidation of Tenant; provided, however, if any decree or order
was entered without Tenant's consent or over Tenant's objection, Landlord may
not terminate this Lease pursuant to this Subsection if such decree or order is
rescinded or reversed within thirty (30) days after its original entry;
(j) Tenant or any guarantor of this Lease shall have availed itself of
the protection of any debtor's relief law, moratorium law or other similar law
which does not require the prior entry of a decree or order; or
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(k) Tenant shall have defaulted, beyond any applicable cure period, if
any, under the terms of the Work Letter, the Riser License or the Parking
License.
12.2 LANDLORD'S REMEDIES.
(a) In the event of any default by Tenant, and without limiting
Landlord's right to indemnification as provided in Section 8.2 above, Landlord
shall have the following remedies, in addition to all other rights and remedies
provided by Law or otherwise provided in this Lease, to which Landlord may
resort cumulatively, or in the alternative:
(i) Landlord may, at its election, keep this Lease in effect and
enforce, by an action at law or in equity, all of its rights and remedies under
this Lease including, without limitation, (i) the right to recover the Rent and
other sums as they become due by appropriate legal action, (ii) the right to
make payments required by Tenant, or perform Tenant's obligations and be
reimbursed by Tenant for the cost thereof with interest at the Default Rate from
the date the sum is paid by Landlord until Landlord is reimbursed by Tenant, and
(iii) the remedies of injunctive relief and specific performance to prevent
Tenant from violating the terms of this Lease and/or to compel Tenant to perform
its obligations under this Lease, as the case may be.
(ii) Landlord may, at its sole option, terminate this Lease, by
notice to Tenant, whereupon this Lease shall terminate as fully and completely
as if the date of Landlord's notice as aforesaid were the date herein originally
fixed for the expiration of the Lease Term, Tenant hereby waiving all statutory
rights (including, without limitation, rights of redemption, if any, to the
extent such rights may be lawfully waived) except that Tenant shall continue to
be liable to Landlord as provided herein. In the event of such termination,
Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails
to do so, Landlord may, without prejudice to any other remedy which it may have
for possession or arrearages in Rent, enter upon and take possession of the
Premises and expel or remove Tenant and any other Person who may be occupying
the Premises or any part thereof, without being liable for prosecution or any
claim or damages therefore. Any termination under this Subsection shall not
relieve Tenant from its obligation to pay to Landlord all Base Monthly Rent and
Additional Rent then or thereafter due, or any other sums due or thereafter
accruing to Landlord, or from any claim against Tenant for damages previously
accrued or then or thereafter accruing. In no event shall any one or more of the
following actions by Landlord, in the absence of a written election by Landlord
to terminate this Lease constitute a termination of this Lease.
(iii) Landlord may appoint a receiver or keeper in order to
protect Landlord's interest hereunder.
(iv) Landlord may take any action which is intended to mitigate
the adverse effects of any breach of this Lease by Tenant, including, without
limitation, any action taken to maintain and preserve the Premises or any action
taken to relet the Premises or any portion thereof for the account at Tenant and
in the name of Tenant.
(b) If this Lease shall have been terminated as provided in this
Section 12.2 or otherwise, or if any execution or attachment shall be issued
against Tenant or any of Tenant's property whereupon the Premises shall be taken
or occupied by someone other than Tenant, then Landlord may, without notice,
re-enter the Premises, either by summary proceedings, ejectment or otherwise,
and remove and dispossess Tenant and all other Persons or any and all property
from the same, as if the Lease had not been made. Landlord may, at its option,
remove and store any of Tenant's effects, and those of any Persons claiming by
through and under Tenant, at the expense and risk of Tenant.
(c) If this Lease shall have been terminated as provided in this
Section 12.2, at the election of Landlord exercisable at any time, Landlord may
recover from Tenant all damages that Landlord may suffer or incur by reason of
Tenant's default including, without limitation, a sum which, at the date of such
termination, represents the value of:
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(i) the excess, if any, of the Rent, Additional Rent and all
other sums which would have been payable under this Lease by Tenant for the
period commencing with the day following the date of such termination and ending
with the date the Lease Term would have naturally expired had this Lease not
been terminated, over the aggregate reasonable rental value of the Premises for
the period commencing with the day following the date of such termination and
ending with the date the Lease Term would have naturally expired had this Lease
not been terminated; plus
(ii) the costs of recovering possession of the Premises and all
other expenses reasonably incurred by Landlord due to Tenant's default
including, without limitation, reasonable attorneys' fees and costs; plus
(iii) the unpaid Rent, Additional Rent, and other sums payable by
Tenant under this Lease earned as of the date of termination; plus
(iv) any other sums of money and damages owing under this Lease
by Tenant to Landlord on the date of termination or in connection with the
Premises;
all of which shall be deemed immediately due and payable.
The amount of the excess in clause (c)(i) above shall be discounted to
present value at a rate per annum of six percent (6%). In determining the
"aggregate reasonable rental value of the Premises" pursuant to clause (c)(i)
above, the parties agree that, at the time Landlord seeks to enforce this
remedy, all relevant factors shall be considered including, without limitation,
(a) the length of time remaining in the Lease Term, (b) the then current market
conditions in the Central Perimeter Market of Atlanta, Georgia, (c) the
likelihood of reletting the Premises for a period of time equal to the remainder
of the Lease Term, (d) the net effective rental rates then being obtained by
landlords for space of similar size and type in Class A multi-tenant office
buildings of comparable age in the Central Perimeter Market of Atlanta, Georgia,
(e) the vacancy levels in the Class A office market in the Central Perimeter
Market of Atlanta, Georgia, (f) current levels of new construction that will be
completed during the remainder of the Lease Term and how this construction will
likely affect vacancy rates and rental rates, and (g) inflation.
All amounts due under this Section 12.2(c) shall not be deemed a penalty
but shall 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 said liquidated damages
are a reasonable estimate of actual damages.
(d) In case of any default described in Section 12.1 above, re-entry,
expiration or dispossession by summary proceedings or otherwise, Landlord may
(i) relet the Premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term or terms which may, at Landlord's option, be
equal to or less than or exceed the period which would otherwise have
constituted the balance of the Lease Term of this Lease and may grant reasonable
concessions or free rent to the extent that Landlord considers advisable and
necessary to relet the same and (ii) may make such reasonable alterations,
repairs and decorations in the Premises as Landlord in its sole judgment
considers advisable and necessary for the purposes or reletting the Premises;
and the making of such alterations, repairs and decorations shall not operate or
be construed to release Tenant from liability hereunder as aforesaid. Tenant
hereby expressly waives any and all rights of redemption granted by or under any
present or future Laws in the event of Tenant being evicted or dispossessed, or
in the event of Landlord obtaining possession of the Premises, by reason of the
violation by Tenant of any of the covenants and conditions of this Lease.
(e) Any agreement by Landlord for free, reduced (including the Monthly
Rent Credit), or discounted Rent or other charges applicable to the Premises, or
for the giving or paying by Landlord to or for Tenant of any cash or other
bonus, inducement or consideration for Tenant's entering into this Lease, all of
which concessions are hereinafter referred to as "Inducement Provisions," shall
be deemed conditioned upon Tenant's full and faithful performance of all of the
terms, covenants and conditions of this Lease to be performed or observed by
Tenant during the Lease Term. Upon the occurrence of an
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Event of Default, any such Inducement Provisions shall automatically be deemed
deleted from this Lease and of no further force or effect, and any Rent, other
charge, bonus, credit (including the Monthly Rent Credit), consideration or
other inducement theretofore abated, given, credited or paid by Landlord under
such an Inducement Provision shall be immediately due and payable by Tenant to
Landlord (except in the case of the Tenant Improvement Allowance, only the
unamortized portion shall be due and payable), and recoverable by Landlord as
Additional Rent due under this Lease, notwithstanding any subsequent cure of
said Event of Default by Tenant. The acceptance by Landlord of Rent or the cure
of the Event of Default which initiated the operation of this Section 12.2(e)
shall not be deemed a waiver by Landlord of the provisions of this Section
12.2(e) unless specifically so stated in writing by Landlord at the time of such
acceptance.
12.3 LANDLORD'S DEFAULT AND TENANT'S REMEDIES. If Landlord fails to perform
its obligations under this Lease, Landlord shall not be in default under the
terms of this Lease unless and until Tenant shall have first given Landlord
written notice specifying the nature of such failure to perform its obligations,
and then only after Landlord shall have had thirty (30) days following its
receipt of such notice within which to perform such obligations; provided that,
if more than thirty (30) days is reasonably required in order to perform such
obligations, Landlord shall have such longer period, so long as Landlord
commences cure within the original thirty (30) day period and diligently pursues
the same to completion. In the event of Landlord's default as above set forth,
then, and only then, may Tenant then proceed in equity or at law to compel
Landlord to perform its obligations or to recover damages proximately caused by
such default (except as and to the extent Tenant has waived its right to damages
as provided in this Lease).
12.4 WAIVER. Tenant hereby waives, for itself and all Persons claiming by,
through, or under it, any right of redemption, reinstatement, or for the
restoration of the operation of this Lease under any present or future Law in
case Tenant shall be lawfully dispossessed for any cause, or in case Landlord
shall lawfully obtain possession of the Premises as herein provided.
ARTICLE 13
GENERAL PROVISIONS
13.1 TAXES ON TENANT'S PROPERTY. Tenant shall pay before delinquency any
and all taxes, assessments, license fees, use fees, permit fees and public
charges of whatever nature or description levied, assessed or imposed against
Tenant or Landlord arising out of or based upon any of the following
(collectively, "Tenant's Interest"): (a) Tenant's interest or estate in this
Lease, (b) Tenant's use or ownership of Tenant's Property, (c) alterations,
modifications or improvements, other than the Initial Tenant Improvement Work,
made to the Premises by or on behalf of Tenant, to the extent the same exceed
the Building standard, and the tax assessment, fee or charge attributable to
Tenant is reasonably ascertainable from the invoice, xxxx or records of the
taxing authority, (d) alterations, modifications or improvements made to the
Premises by or on behalf of Landlord for Tenant's use within the Premises, to
the extent the same exceed the Building standard, and the tax assessment, fee or
charge attributable to Tenant is reasonably ascertainable from the invoice, xxxx
or records of the taxing authority; and (e) Tenant's use (or estimated use) of
public facilities or services or Tenant's consumption (or estimated consumption)
of public utilities, energy, water or other resources. Within thirty (30) days
following written demand by Landlord, Tenant shall furnish Landlord with
satisfactory evidence of such payments. If any such taxes, assessments, fees or
public charges are levied against Landlord, the Property or any part thereof, or
Landlord's personal property, or if the assessed value of the Building or the
Property is increased by the inclusion therein of a value placed upon Tenant's
Interest, regardless of the validity thereof, Landlord shall have the right to
require Tenant to pay such taxes, assessments, fees and charges, and if not paid
and satisfactory evidence of payment is not delivered to Landlord at least
thirty (30) days prior to delinquency, then Landlord shall have the right to pay
such taxes, assessments, fees and charges on Tenant's behalf and to invoice
Tenant for the same. Tenant shall within thirty (30) days of the date it
receives an invoice from Landlord setting forth the amount of such taxes,
assessments, fees, or charges so levied, pay to Landlord, as Additional Rent,
the amount set forth in such invoice. Tenant shall have the right to bring suit
in any court of competent jurisdiction to recover from the taxing authority the
amount of any such taxes, assessments, fees or public charges so paid.
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13.2 HOLDING OVER. This Lease shall terminate without further notice on the
Lease Expiration Date. Any holding over by Tenant after expiration of the Lease
Term shall neither constitute a renewal nor extension of this Lease nor give
Tenant any rights in or to the Premises except as expressly provided in this
Section 13.2. Any such holding over to which Landlord may expressly consent in
writing shall be construed to be a tenancy from month-to-month, on the same
terms and conditions herein specified insofar as applicable, except that the
Base Monthly Rent shall be increased to an amount equal to one hundred fifty
percent (150%) of the Base Monthly Rent payable during the last full month
immediately preceding the Lease Expiration Date and Tenant shall not have any
rights whatsoever under Article 15 below. Tenant acknowledges that if Tenant
holds over without Landlord's consent, such holding over may compromise or
otherwise affect Landlord's ability to enter into new leases with prospective
tenants regarding the Premises. In addition to all other rights and remedies
that Landlord has under this Lease or at law or in equity (including, without
limitation, the right to evict Tenant and regain possession of the Premises in
accordance with applicable Law), if Tenant fails to surrender the Premises upon
the expiration or earlier termination of this Lease, Tenant shall defend,
indemnify and hold Landlord harmless from and against all Adverse Consequences
resulting from Tenant's failure to surrender the Premises (in the condition
required by this Lease) on or before the expiration or sooner termination of
this Lease, except that Tenant shall not be required to indemnify Landlord for
any lost rents with respect to the Premises if Tenant surrenders the Premises
(in the condition required by this Lease) prior to the sixtieth (60th) day after
the expiration or sooner termination of this Lease. Tenant's obligations under
this Section 13.2 shall survive the expiration or sooner termination of this
Lease.
13.3 SUBORDINATION. This Lease is and shall be subject and subordinate to
all present and, subject to Tenant's receipt of a non-disturbance agreement as
provided below in this Section 13.3, all future, ground leases, underlying
leases, mortgages and deeds of trust which affect the Building or the Property,
and to all renewals, modifications, consolidations, replacements and extensions
thereof, and to all advances made thereunder. However, if the lessor under any
such ground lease or any Lender holding any such mortgage or deed of trust shall
advise Landlord that it desires or requires this Lease to be made prior and
superior thereto, then, upon written request of Landlord to Tenant, Tenant shall
promptly execute, acknowledge and deliver any and all customary or reasonable
documents or instruments which Landlord and such lessor or Lender deems
necessary or desirable to make this Lease prior thereto. Tenant hereby consents
to Landlord's (a) ground leasing the land underlying the Building or the
Property or any part thereof and/or (b) encumbering the Building or the Property
or any part thereof as security for future loans on such terms as Landlord shall
desire. If any lessor under any such future ground lease or any Lender (or
prospective Lender) holding (or to hold) any such future mortgage or deed of
trust or other security interest shall desire or require that this Lease be made
subject to and subordinate to such future ground lease, mortgage or deed of
trust, or other security interest, then Tenant agrees, within fifteen (15) days
after Landlord's written request therefor, execute, acknowledge and deliver to
Landlord any and all documents or instruments required by Landlord or by such
lessor, prospective lessor, Lender or prospective Lender to assure the
subordination of this Lease to such ground lease, mortgage, deed of trust, or
other security instrument, provided such documents or instruments contain the
lessor's, prospective lessor's, Lender's or prospective Lender's agreement not
to disturb (subject to the terms and conditions of this Lease) Tenant's
occupancy of the Premises under this Lease so long as Tenant is not in default
under this Lease. Tenant acknowledges and agrees that such documents or
instruments may include such provisions as the lessor, prospective lessor,
Lender or prospective Lender customarily requires in connection with such
documents or instruments in comparable transactions including, without
limitation, provisions that the lessor, prospective lessor, Lender or
prospective Lender shall not be bound by any amendment, surrender or termination
of this Lease not consented to in writing by the Lender, shall not be bound by
any obligation to construct or pay for any tenant improvements or to make any
other payments to Tenant which were required to be made prior to the time such
Lender or prospective Lender acquired title to the Property, shall not be
subject to any offsets, defenses or claims existing against Landlord or any
prior landlord, shall not be liable for any acts or omissions of Landlord or any
prior landlord, shall not be liable for any security deposit not actually
received by the Lender or for any letter of credit not assigned and physically
surrendered to the Lender, and shall not be liable for any defaults on the part
of Landlord occurring prior to the time the Lender or prospective Lender
acquires title to the Property (or any part thereof) pursuant to the enforcement
of its rights under its mortgage, deed of trust or other security instrument, as
the case may be. Tenant waives
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the provisions of any current or future statute, rule or law which may give or
purport to give Tenant any right or election to terminate or otherwise adversely
affect this Lease and the obligations of the Tenant hereunder in the event of
any foreclosure proceeding or sale.
13.4 TENANT'S ATTORNMENT UPON FORECLOSURE. Tenant shall, upon request,
attorn (i) to any purchaser of the Building or the Property at any foreclosure
sale or private sale conducted pursuant to any security instruments encumbering
the Building or the Property, (ii) to any grantee or transferee designated in
any deed given in lieu of foreclosure of any security interest encumbering the
Building or the Property, or (iii) to the lessor under an underlying ground
lease of the land underlying the Building or the Property, should such ground
lease be terminated; provided that such purchaser, grantee or lessor shall
recognize Tenant's rights under this Lease.
13.5 MORTGAGE PROTECTION. In the event of any default on the part of
Landlord, Tenant will give notice by registered mail to any lessor under any
underlying ground lease or Lender who directly or through Landlord shall have
requested of Tenant, in writing, that it be provided with such notice, and
Tenant shall offer such Lender or lessor a reasonable opportunity to cure the
default, including time to obtain possession of the Premises by power of sale or
judicial foreclosure or other appropriate legal proceedings if reasonably
necessary to effect a cure.
13.6 ESTOPPEL CERTIFICATE. Tenant will, during the Lease Term, within
fifteen (15) days following Landlord's written request therefor, execute and
deliver to Landlord an estoppel certificate substantially in the form attached
hereto as EXHIBIT "C" hereto, (i) certifying that this Lease is unmodified and
in full force and effect, or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect, (ii) stating the date to which the Rent and other charges are paid
in advance, if any, (iii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or specifying
such defaults if any are claimed, and (iv) certifying such other information
about this Lease as may be reasonably requested by Landlord, its Lender or
prospective lenders, investors or purchasers of the Building or the Property.
Landlord and Tenant intend that any estoppel certificate delivered pursuant to
this Section 13.6 may be relied upon by any Lender or purchaser or prospective
Lender or purchaser of the Building, the Property, or any interest in any of
them.
13.7 TENANT'S FINANCIAL INFORMATION. Subject to the last sentence of this
Section 13.7, Tenant shall, within fifteen (15) business days after Landlord's
written request therefor, deliver to Landlord a copy of Tenant's (and any
guarantor's, if any) most recent quarterly and annual financial statements
(including a balance sheet, income statement and statement of cash flow, all
prepared in accordance with generally accepted accounting principles) and any
such other information reasonably requested by Landlord regarding Tenant's
financial condition; provided, however, that Landlord may not request such
materials more often than three (3) times in any calendar year during the Lease
Term. Landlord shall be entitled to disclose such financial statements or other
information to its Lender, to any present or prospective principal of or
investor in Landlord, or to any prospective lender or purchaser of the Property
or any portion thereof or interest therein. Any such financial statement or
other information which is marked "confidential" or "company secrets" (or is
otherwise similarly marked by Tenant) shall be confidential and Landlord shall
use reasonable efforts not to disclose the same to any third party except as
specifically provided in this Section 13.7, except to the extent the same
becomes a part of the public domain without the fault of Landlord or such
disclosure is required by applicable Law. If Tenant is a company whose stock is
traded on the New York Stock Exchange, the American Stock Exchange, the NASDAQ
or any other nationally recognized United States' stock exchange and such
exchange requires disclosure of Tenant's financial performance and condition on
a quarterly or more frequent basis, then such Tenant shall not be required to
deliver financial statements to Landlord as provided above in this Section 13.7.
13.8 TRANSFER BY LANDLORD. Landlord and its successors in interest shall
have the right to transfer their interest in the Property or any portion thereof
at any time and to any Person. In the event of any such transfer, Landlord
originally named herein (and in the case of any subsequent transfer, the
transferor), from the date of such transfer, (i) shall be relieved of all
liability for the performance of the
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obligations of Landlord hereunder which may accrue after the date of such
transfer so long as the transferee agrees in writing to assume the obligations
of Landlord accruing after the date of transfer, and (ii) shall be relieved of
all liability for the performance of the obligations of Landlord hereunder which
have accrued before the date of transfer if the transferee agrees to assume and
perform all such prior obligations of Landlord hereunder. Tenant shall attorn to
any such transferee. After the date of any such transfer, the term "Landlord" as
used herein shall mean the transferee of such interest in the Property or
portion thereof.
13.9 FORCE MAJEURE. The obligations of each of the parties under this Lease
(other than the obligation, in Tenant's case, to pay Rent or any other charge or
sum due hereunder) shall be temporarily excused if such party is prevented or
delayed in performing such obligations by reason of any strikes, lockouts or
labor disputes; government restrictions, regulations, controls, action or
inaction; civil commotion; terrorist acts; cessation or interruption of the
supply of electricity, gas or other utilities to the Property by utility
companies providing the same (other than by reason of a party's failure to pay
for such utilities if directly contracting for such utilities); or extraordinary
weather, fire or other acts of God (each such event being referred to herein as
"Force Majeure"); provided, however, that Force Majeure shall not include the
inability to pay money, general economic conditions, restrictions on the
availability of credit or money, or other causes related to economic or business
conditions generally or to the particular financial condition of a party. If the
happening of any such Force Majeure event only partially impairs the performance
of a party's obligations hereunder, such party shall continue to perform under
this Lease to the fullest extent possible in light of such Force Majeure event.
13.10 NOTICES. Any notice required or permitted to be given under this
Lease shall be in writing and (i) personally delivered, (ii) sent by United
States mail, registered or certified mail, postage prepaid, return receipt
requested, (iii) sent by Federal Express or similar nationally recognized
overnight courier service, or (iv) transmitted by facsimile with a hard copy
sent within one (1) business day by any of the foregoing means, and in all cases
addressed as follows, and such notice shall be deemed to have been given upon
the date of actual receipt or delivery (or refusal to accept delivery) at the
address specified in Article 1 above (or such other address as may be specified
by written notice in the foregoing manner) as indicated on the return receipt or
air xxxx. Any notice given in accordance with the foregoing shall be deemed
received upon actual receipt or refusal to accept delivery. A notice given by
counsel for Landlord or Tenant shall be deemed a valid notice if addressed and
sent in accordance with the provisions of this Section 13.10.
13.11 ATTORNEYS' FEES. In the event any party shall bring any action,
arbitration proceeding or legal proceeding alleging a breach of any provision of
this Lease, to recover Rent, to terminate this Lease, or to enforce, protect,
determine or establish any term or covenant of this Lease or rights or duties
hereunder of either party, the prevailing party shall be entitled to recover
from the non-prevailing party as a part of such action or proceeding, or in a
separate action for that purpose brought within one year from the determination
of such proceeding, reasonable attorneys' fees actually incurred, expert witness
fees, court costs and other reasonable expenses incurred by the prevailing
party.
13.12 DEFINITIONS. Any term that is given a special meaning by any
provision in this Lease shall, unless otherwise specifically stated, have such
meaning wherever used in this Lease or in any Addenda or amendment hereto. In
addition to the terms defined in Article 1 above, the following terms shall have
the following meanings:
(a) ADVERSE CONSEQUENCES. The term "Adverse Consequences" shall mean
any claims, demands, actions, suits, judicial or administrative proceedings or
orders, judgments, fines, penalties, damages, liabilities, losses, costs, and
expenses (including, without limitation, reasonable attorneys' fees and costs).
(b) AFFILIATE. The term "Affiliate", with respect to any Person, shall
mean any entity controlled by, controlling, or under common control with such
Person.
(c) BASE YEAR. The term "Base Year" shall mean 2007.
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(d) CALENDAR YEAR. The term "Calendar Year" shall mean each calendar
year in which any portion of the Lease Term falls, through and including the
calendar year in which the Lease Term expires.
(e) DEFAULT RATE. The term "Default Rate" shall mean ten percent (10%)
per annum or the maximum interest rate permitted by applicable law, whichever is
less.
(f) EXPENSE YEAR. The term "Expense Year" shall mean each Calendar
Year.
(g) LANDLORD'S INSURANCE COSTS. The term "Landlord's Insurance Costs"
shall mean the costs to Landlord to carry and maintain the policies of fire and
property damage insurance for the Property and general liability and any other
insurance required or permitted to be carried by Landlord pursuant to Article 9
(including environmental and terrorism insurance if typically carried by
institutional owners of other Class A multi-tenant office buildings of
comparable age and condition in the Perimeter Summit Market or if required by
any Lender), together with any deductible amounts paid by Landlord upon the
occurrence of any insured casualty or loss. If Landlord's calculation of
Property Operating Expenses for the Base Year does not include an amount
allocated to Landlord's Insurance Costs for the Base Year, then the amount of
Landlord's Insurance Costs first established by Landlord for any subsequent
Expense Year shall be deemed to be Landlord's Insurance Costs for the Base Year.
(h) LANDLORD'S UTILITIES COSTS. The term "Landlord's Utilities Costs"
shall mean all charges for utilities for the Property paid or incurred by
Landlord during any Expense Year including, but not limited to, the costs of
water, sewer, gas, and electricity, and the costs of heating, ventilation and
air conditioning ("HVAC") (including, without limitation, the cost of
electricity to operate the HVAC air handlers serving the Premises) and other
utilities (but excluding the cost of electricity and/or gas consumed by Landlord
in those portions of the Building occupied by Landlord to the extent such
consumption exceeds normal Class A office use as determined by Landlord in its
sole good faith discretion). Landlord's Utilities Costs shall be calculated
assuming the Building is one hundred percent (100%) occupied. If, during all or
any part of any Expense Year (including the Base Year), Landlord shall not
provide any utilities (the cost of which, if provided by Landlord, would be
included in Landlord's Utilities Costs) to a tenant (including Tenant) who has
undertaken to provide the same instead of Landlord, Landlord's Utilities Costs
shall be deemed to be increased by an amount equal to the additional Landlord's
Utilities Costs which would reasonably have been incurred during such period by
Landlord if Landlord had at its own expense provided such utilities to such
tenant. Landlord's Utilities Costs shall include, without limitation, any costs
of utilities which are allocated to the Property under any declaration,
restrictive covenant, or other instrument pertaining to the sharing of costs by
the Property or any portion thereof, including any covenants, conditions or
restrictions now or hereafter recorded against or affecting the Property. For
purposes of determining Landlord's Utilities Costs incurred for the Base Year,
Landlord's Utilities Costs for the Base Year shall not include any one time
special charges, costs or fees or extraordinary charges or costs incurred in the
Base Year only, including those attributable to boycotts, embargoes, strikes or
other shortages of services or fuel. In addition, if in any Expense Year
subsequent to the Base Year the amount of Landlord's Utilities Costs decreases
due to a reduction in the cost of providing utilities to the Property for any
reason, including without limitation, because of deregulation of the utility
industry and/or reduction in rates achieved in contracts with utilities
providers, then for purposes of the Expense Year in which such decrease in
Landlord's Utilities Costs occurred and all subsequent Expense Years, the
Landlord's Utilities Costs for the Base Year shall be decreased by an amount
equal to such decrease.
(i) LAW. The term "Law" shall mean any judicial decisions and any
statute, constitution, ordinance, code, resolution, regulation, rule,
administrative order, or other requirements of any municipal, county, state,
federal, or other governmental agency or authority having jurisdiction over the
parties to this Lease, the Premises, the Building or the Property, or any of
them, in effect either at the Lease Commencement Date or at any time while this
Lease shall be in effect, including, without limitation, any regulation, order,
or policy of any quasi-official entity or body (e.g. a board of fire examiners
or a public utility or special district).
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(j) LENDER. The term "Lender" shall mean the holder of any promissory
note or other evidence of indebtedness secured by Landlord's interest in the
Property or any portion thereof.
(k) NORMAL BUSINESS HOURS. The term "Normal Business Hours" shall mean
Monday through Friday, 7:00 a.m. to 6:00 p.m. and Saturdays 8:00 a.m. to 1:00
p.m., expressly excluding Sundays and Holidays (hereinafter defined). As used
herein, the term "Holidays" shall mean New Year's Day, Xxxxxx Xxxxxx Xxxx'x
Birthday, President's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day.
(l) PERSON. The term "Person" shall mean any natural person and any
corporation, partnership, limited liability company, joint venture, association,
agency or other entity.
(m) PRIVATE RESTRICTIONS. The term "Private Restrictions" shall mean
any and all recorded covenants, conditions, restrictions, encumbrances,
agreements, easements, rights of way, and other recorded documents or
instruments now or hereafter affecting the use or occupancy of the Property or
any part thereof.
(n) PROPERTY MAINTENANCE COSTS. The term "Property Maintenance Costs"
shall mean all expenses, costs and amounts of every kind and nature paid or
incurred by Landlord during any Expense Year because of or in connection with
the ownership, management, maintenance, repair, replacement, restoration or
operation of the Property (except Landlord's Insurance Costs, Landlord's
Utilities Costs, and Real Property Taxes) including, without limitation, (i) the
cost of operating, maintaining, repairing, renovating and managing the utility
systems, mechanical systems, sanitary and storm drainage systems, and elevator
systems in or serving the Building, and the cost of supplies and equipment and
maintenance and service contracts in connection therewith; (ii) the cost of
licenses, certificates, permits and inspections, and the cost of contesting the
validity or applicability of any governmental enactments enacted on or after the
Lease Commencement Date which may affect Property Operating Expenses, and the
costs incurred in connection with implementation and operation (by Landlord or
any owners' or common area association(s) formed for the Property) of any
transportation system management program or similar program; (iii) the cost of
operating, repairing, maintaining and replacing the Systems and Equipment or any
part thereof; (iv) the cost of landscaping, relamping, supplies, tools,
equipment and materials, and all fees, charges and other costs (including
consulting fees, legal fees and accounting fees) incurred in connection with the
management, operation, repair and maintenance of the Property; (v) the cost of
parking area repair, restoration, and maintenance; (vi) amounts due under any
equipment rental agreements pertaining to the Property; (vii) wages, salaries
and other compensation and benefits of all Persons engaged in the operation,
management, maintenance or security of the Property, but as to rearrangement
personnel not above the level of Building Manager, and employer's Social
Security taxes, unemployment taxes or insurance, and any other taxes which may
be levied on such wages, salaries, compensation and benefits; provided, however,
if such employees provide service to the Property on less than a full time
basis, such salaries, compensation and benefits (and taxes and insurance
thereon) shall be prorated based upon the time such employees are engaged in
providing services to the Property; (viii) payments under any easement, license,
operating agreement, declaration, restrictive covenant, underlying or ground
lease (excluding rent under a ground lease), or instrument pertaining to the
sharing of costs by the Property; (ix) the cost of window cleaning and trash
removal; (x) to the extent not a capital improvement or capital expenditure
governed by clause (xvii) below, the cost of replacement of wall and floor
coverings, ceiling tiles and fixtures in lobbies, corridors, restrooms and other
Common Areas or public areas or facilities; (xi) to the extent not a capital
improvement or capital expenditure governed by clause (xvii) below, the cost of
maintenance and replacement of curbs and walkways, repairs to the Building's
roof and/or roof membrane, replacement of the Building's roof or any other
structural parts of the Building; (xii) the cost of janitorial service, alarm
and security service, if any (consistent with the level of such services being
provided in Class A multi-tenant office buildings of comparable age and
condition located in the Central Perimeter Market of Atlanta, Georgia); (xiii)
amounts due under any third party management agreement entered into by Landlord
with respect to the Property or any part thereof (including the cost of any
management fee); (xiv) assessments, fees or other payments due any owners'
association (including, without limitation, the owners' association for
Perimeter Summit Office Park); (xv) amortization (including interest on the
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unamortized cost) of the cost of acquiring or the rental expense of personal
property used in the maintenance, operation and repair of the Property; (xvi) if
Landlord self manages the Building, or has an Affiliate of Landlord manage the
Building, an amount equal to the greater of (1) three percent (3%) of the gross
rents received by Landlord from the Building or (2) the property management fee
that would be charged by an unaffiliated or unrelated reputable property
management company for the same services; and (xvii) the cost of any capital
improvements, expenditures or other costs (I) which are intended as a
labor-saving device or to effect other economies in the operation or maintenance
of the Property, or (II) made to the Property or any portion thereof after the
Lease Commencement Date that are required under any applicable Laws, or (III)
which are necessary or desirable, in Landlord's sole good faith opinion, to
operate, keep and maintain the Property as a Class A multi-tenant office
building; provided, however, that if any such cost described in (I), (II) or
(III) above, is a capital expenditure, such cost shall be amortized (including
interest on the unamortized cost at the per annum rate of 7%) over its useful
life as determined under generally accepted accounting principles (GAAP); and
(xviii) the cost of acquiring and maintaining any artwork for the Property up to
and including $100,000, with any costs in excess of $100,000 to be amortized
(including interest on the unamortized cost at the per annum rate of 7%) over a
ten (10) year period. If in any Expense Year Landlord is not furnishing any
particular work or service (the cost of which, if performed by Landlord, would
be included in Property Maintenance Costs) to a tenant who has undertaken to
perform such work or service in lieu of the performance thereof by Landlord,
Property Maintenance Costs shall be deemed to be increased by an amount equal to
the additional Property Maintenance Costs which would reasonably have been
incurred during such period by Landlord if it had at its own expense furnished
such work or service to such tenant. "Property Maintenance Costs" shall not
include the following:
(1) Wages and salaries of any officers and executives of Landlord
above the level of Building manager;
(2) The cost of repairs and maintenance to the Property for which
Landlord is actually reimbursed by a third party, such as insurance proceeds,
warranty proceeds and condemnation awards;
(3) The cost of any alterations or refurbishing of space leased
to other tenants of the Building (including the cost of removing tenant
installations or demolition of tenanted space);
(4) Brokerage commissions related to leasing vacant space and
marketing costs related to vacant space;
(5) Any principal, interest or rent payments due under the terms
of any mortgage, ground lease or other underlying lease of the Property;
(6) The cost of environmental remediation of Hazardous Materials
that are placed on the Property by Landlord or any tenant of the Building,
including the remediation of any soils or ground water contaminated by any such
Hazardous Materials;
(7) Legal or accounting fees incurred by Landlord in connection
with the acquisition or disposition or financing or refinancing of the Property
or the execution of other leases of the Building;
(8) Political contributions and dues paid to trade associations
or other professional associations (which do not include owners' associations);
(9) Except as provided above in this Section 13.12(n) (see clause
(xviii)), costs of acquiring or maintaining any art work for the Property;
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(10) Costs paid to affiliates of Landlord to provide services or
furnish materials for the Property to the extent the rates or fees charged by
such entities are in excess of the current market rates or fees charged by
unrelated or unaffiliated entities for the same services or materials.
(11) the cost of any special work or service performed by
Landlord for any tenant or occupant of the Building (including Tenant) at such
tenant's or occupant's entire cost and paid directly to Landlord;
(12) the cost of installing, operating and maintaining a luncheon
club, health club, athletic club, newsstand or sundry shop at the Building;
(13) the cost of electric power for which any tenant contracts
directly with and pays directly to the local public utility company;
(14) Landlord's general corporate overhead and general
administrative expenses (except to the extent the same is included as a part of
the management fees permitted pursuant to clause (xvi) above);
(15) advertising costs, marketing costs, tenant incentives,
promotional expenditures, legal fees and travel expenses incurred in connection
with entering into and enforcing leases with other tenants or prospective
tenants in the Building;
(16) Landlord's charitable contributions;
(17) depreciation and amortization, except as provided above in
Section 13.12(n);
(18) any bad debt losses, rent losses, or reserves for bad debts
or rent losses; and
(19) reserves for repairs, maintenance and replacements beyond
current-year anticipated expenses. Landlord shall not collect Property
Maintenance Costs in excess of one hundred percent 100% of all Landlord's
Property Maintenance Costs plus any Rent, fees and other charges payable to
Landlord under the terms of this Lease.
(o) PROPERTY OPERATING EXPENSES. The term "Property Operating
Expenses" shall mean and include all Real Property Taxes plus all Landlord's
Insurance Costs plus all Property Maintenance Costs plus all Landlord's
Utilities Costs. If the Building is less than one hundred percent (100%)
occupied during all or a portion of any Expense Year (including the Base Year),
Landlord shall make an appropriate adjustment to the variable components of
Property Operating Expenses for such year or applicable portion thereof,
employing sound accounting and property management principles, to determine the
amount of Property Operating Expenses that would have been paid had the Building
been one hundred percent (100%) occupied; and the amount so determined shall be
deemed to have been the amount of Property Operating Expenses for such year, or
applicable portion thereof.
(p) [INTENTIONALLY OMITTED.]
(q) REAL PROPERTY TAXES. The term "Real Property Tax" or "Real
Property Taxes" shall each mean (i) all taxes, assessments, levies and other
charges of any kind or nature whatsoever, general and special, foreseen and
unforeseen (including all instruments of principal and interest required to pay
any general or special assessments for public improvements and any increases
resulting from reassessments caused by any change in ownership or new
construction), now or hereafter imposed by
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any governmental or quasi-governmental authority or special district having the
direct or indirect power to tax or levy assessments, which are levied or
assessed for whatever reason against the Property or any portion thereof, or
Landlord's interest herein, or the fixtures, equipment and other property of
Landlord that is an integral part of the Property and located thereon, or
Landlord's business of owning, leasing or managing the Property or the gross
receipts, income or rentals from the Property, (ii) all charges, levies or fees
imposed by any governmental authority against Landlord by reason of or based
upon the use of or number of parking spaces within the Property, the amount of
public services or public utilities used or consumed (e.g. water, gas,
electricity, sewage or waste water disposal) at the Property, the number of
Persons employed by tenants of the Property, the size (whether measured in area,
volume, number of tenants or whatever) or the value of the Property, or the type
of use or uses conducted within the Property, and all costs and fees (including
reasonable attorneys' fees) reasonably incurred by Landlord in contesting any
Real Property Tax and in negotiating with public authorities as to any Real
Property Tax. If, at any time during the Lease Term, the taxation or assessment
of the Property prevailing as of the Lease Commencement Date shall be altered so
that in lieu of or in addition to any of the Real Property Tax described above
there shall be levied, awarded or imposed (whether by reason of a change in the
method of taxation or assessment, creation of a new tax or charge, or any other
cause) an alternate, substitute, or additional use or charge (i) on the value,
size, use or occupancy of the Property or Landlord's interest therein or (ii) on
or measured by the gross receipts, income or rentals from the Property, or on
Landlord's business of owning, leasing or managing the Property or (iii)
computed in any manner with respect to the operation of the Property, then any
such tax or charge, however designated, shall be included within the meaning of
the terms "Real Property Tax" or "Real Property Taxes" for purposes of this
Lease. If any Real Property Tax is partly based upon property or rents unrelated
to the Property, then only that part of such Real Property Tax that is fairly
allocable to the Property shall be included within the meaning of the terms
"Real Property Tax" or "Real Property Taxes." Notwithstanding the foregoing, (a)
the terms "Real Property Tax" or "Real Property Taxes" shall not include estate,
inheritance, transfer, gift, franchise taxes of Landlord or the federal or state
income tax imposed on Landlord's income from all sources, foreign ownership or
control, succession, recording, payroll or stamp taxes; (b) for purposes of
determining the Real Property Taxes which shall be included in Property
Operating Expenses, in no event shall Real Property Taxes for any Expense Year
be less than the Real Property Taxes for the Base Year. Any Real Property Taxes
that are permitted to be paid in installments over a period of time (without the
imposition of interest, penalties or other charge) shall be deemed paid in the
maximum number of permitted installments and only the minimum number of
installments required in any given year may be included in Property Operating
Expenses for any Expense Year; provided, however, that if the prevailing
practice in comparable first-class office buildings in the Central Perimeter
Market of Atlanta, Georgia is to pay such Real Property Taxes on an earlier
basis, and Landlord pays on such earlier basis, such Real Property Taxes shall
be included in Property Operating Expenses in the calendar year that the same
are paid.
(r) RENT. The term "Rent" shall mean collectively Base Monthly Rent
and all Additional Rent.
(s) SYSTEMS AND EQUIPMENT. The term "Systems and Equipment" shall mean
any plant, machinery, chillers, transformers, duct work, cable, wires, and other
equipment, facilities, and systems designed to supply heat, ventilation, air
conditioning and humidity or any other services or utilities, or comprising or
serving as any component or portion of the electrical, gas, steam, mechanical,
plumbing, sprinkler, communications, alarm, security, or fire/life safety
systems or equipment, or any other mechanical, electrical, electronic, computer
or other systems or equipment which serve the Building and/or any other building
on the Property in whole or in part.
(t) TRANSFEREE. The term "Transferee" shall mean any assignee of
Tenant's interest in this Lease, any sublessee of all or any part of the
Premises, any Person possessing a security interest in Tenant's interest in this
Lease and/or the Premises, and any other transferee of Tenant's interest in this
Lease.
(u) TENANT PARTY. The term "Tenant Party" shall mean any agent,
employee, servant, contractor, subcontractor, licensee, sublessee, successor or
assign of Tenant. As to any
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happening, thing, event or occurrence taking place in the Premises, the term
"Tenant Party" shall also include, in addition to the foregoing Persons, any
guests, visitors or other invitees of Tenant.
(v) QUIET ENJOYMENT. So long as Tenant pays all Base Monthly Rent and
Additional Rent as and when required under the terms of this Lease and performs
all other covenants, conditions and agreements made by Tenant under this Lease
as and when required under the terms of this Lease (giving effect to any
applicable notice and cure periods, if any, contained in this Lease), Tenant
shall, subject to the terms and conditions of this Lease and the rights of any
Lender(s), peacefully and quietly have, hold and enjoy the Premises during the
Lease Term without disturbance or molestation from Landlord or anyone claiming
through or under Landlord.
13.13 GENERAL WAIVERS. One party's consent to or approval of any act by the
other party requiring the first party's consent or approval shall not be deemed
to waive or render unnecessary the first party's consent to or approval of any
subsequent similar act by the other party. No waiver of any provision hereof, or
any waiver of any breach of any provision hereof, shall be effective unless in
writing and signed by the waiving party. The receipt by Landlord of any rent or
payment with or without knowledge of the breach of any other provision hereof
shall not be deemed a waiver of any such breach. No waiver of any provision of
this Lease shall be deemed a continuing waiver unless such waiver specifically
states so in writing and is signed by both Landlord and Tenant. No delay or
omission in the exercise of any right or remedy accruing to either party upon
any breach by the other party under this Lease shall impair such right or remedy
or be construed as a waiver of any such breach theretofore or thereafter
occurring. The waiver by either party of any breach of any provision of this
Lease shall not be deemed to be a waiver of any subsequent breach of the same or
any other provisions herein contained.
13.14 MISCELLANEOUS. Tenant's covenant to pay Rent hereunder is independent
of Landlord's performance of its covenants hereunder, and Tenant hereby
expressly waives the benefit of any statute to the contrary. Should any
provisions of this Lease prove to be invalid or illegal, such invalidity or
illegality shall in no way affect, impair or invalidate any other provisions
hereof, and such remaining provisions shall remain in full force and effect.
Time is of the essence with respect to the payment of Rent and the performance
of every other provision of this Lease in which time of performance is a factor.
Any copy of this Lease which is executed by the parties shall be deemed an
original for all purposes. This Lease shall, subject to the provisions regarding
assignment, apply to and bind the respective heirs, successors, executors,
administrators and assigns of Landlord and Tenant. The term "party" shall mean
Landlord or Tenant as the context implies. The term "including" shall mean, if
the words "without limitation are not already referenced, "including without
limitation". If Tenant consists of more than one Person, then all members of
Tenant shall be jointly and severally liable hereunder. This Lease shall be
construed and enforced in accordance with the Laws of the State in which the
Premises are located. The captions in this Lease are for convenience only and
shall not be construed in the construction or interpretation of any provision
hereof. When the context of this Lease requires, the neuter gender includes the
masculine, the feminine, a partnership, corporation, limited liability company,
joint venture, or other form of business entity, and the singular includes the
plural. The terms "must," "shall," "will," and "agree" are mandatory. The term
"may" is permissive. When a party is required to do something by this Lease, it
shall do so at its sole cost and expense without right of reimbursement from the
other party unless specific provision is made therefor. Where Landlord's consent
is required or permitted hereunder, unless a different standard is expressly
stated in this Lease to apply, Landlord may withhold and/or condition such
consent in Landlord's sole and unfettered discretion without any duty to be
reasonable and without being held to any other standard. Landlord and Tenant
shall both be deemed to have drafted this Lease, and the rule of construction
that a document is to be construed against the drafting party shall not be
employed in the construction or interpretation of this Lease. Where Tenant is
obligated not to perform any act or is not permitted to perform any act, Tenant
is also obligated to restrain each Tenant Party, from performing such act.
Landlord shall not become or be deemed a partner or a joint venturer with Tenant
by reason of any of the provisions of this Lease. For purposes of this Lease,
"reasonable efforts" or "commercially reasonable efforts" by Landlord shall not
include an obligation to employ contractors or labor at overtime or other
premium pay rates or to incur any other overtime costs whatsoever.
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13.15 SUBMISSION OF LEASE. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or an option for lease,
and it is not effective as a lease or otherwise until execution and delivery by
both Landlord and Tenant.
13.16 NO LIGHT, AIR OR VIEW EASEMENT. Any diminution or shutting off of
light, air or view by any structure which may be erected on the Common Areas or
any other part of the Property, or lands adjacent to the Property, shall in no
way affect this Lease or impose any liability on Landlord whatsoever. No rights
to any view or to light or air over any property, whether belonging to Landlord
or any other person, are granted to Tenant by this Lease.
13.17 RIGHT TO LEASE. Landlord reserves the absolute right to effect such
other tenancies in the Building and/or any other portion of the Property as
Landlord in the exercise of its sole business judgment shall determine to best
promote its own interests or the interests of the Property. Tenant does not rely
on the fact, nor does Landlord represent, that any specific tenant or type or
number of tenants shall, during the Lease Term, occupy any space in the Building
or Property.
13.18 OFAC REQUIREMENTS. Tenant (which for this purpose includes its
partners, members, principal stockholders and any other constituent entities)
represents and warrants that it (i) has not been designated as a "specifically
designated national and blocked person" on the most current list published by
the U.S. Treasury Department Office of Foreign Assets Control at its official
website (xxxx://xxx.xxxxx.xxx/xxxx/x00) or at any replacement website or other
replacement official publication of such list; (ii) is currently in compliance
with and will at all times during the Lease Term remain in compliance with the
regulations of the Office of Foreign Asset Control of the Department of the
Treasury and any statute, executive order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism), or other governmental action
relating thereto; and (iii) has not used and will not use funds from illegal
activities for any payment made under the Lease.
13.19 NO CONSEQUENTIAL OR PUNITIVE DAMAGES. In no event shall Landlord be
liable for, and Tenant, on behalf of itself and all other Tenant Parties, hereby
waives any claim for, any indirect, consequential or punitive damages, including
loss of revenues, profits or business opportunity, arising under or in
connection with this Lease including Landlord's breach hereof.
13.20 RENT. All amounts payable by Tenant to or on behalf of Landlord under
this Lease, whether or not expressly denominated Base Monthly Rent, Property
Operating Expenses, Additional Rent or Rent, shall constitute rent for the
purposes of Section 502(b)(6) of the United States Bankruptcy Code.
13.21 JURY TRIAL WAIVER. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER
ON ANY MATTERS IN ANY WAY ARISING OUT OF OR CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES,
OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY STATUTE, EMERGENCY OR OTHERWISE.
13.22 REAL ESTATE INVESTMENT TRUST. If the ownership of the Property or
Building should is ever in a Real Estate Investment Trust, then Landlord and
Tenant agree that Base Monthly Rent and all Additional Rent paid to Landlord
under this Lease shall qualify as "rents from real property" within the meaning
of Section 856(d) of the Internal Revenue Code of 1986, as amended (the "Code")
and the U.S. Department of Treasury Regulations (the "Regulations"). Should the
Code or the Regulations, or interpretations of them by the Internal Revenue
Service contained in Revenue Rulings, be changed so that any Base Monthly Rent
and/or Additional Rent hereunder no longer qualifies as "rent from real
property" for the purposes of Section 856(d) of the Code and the Regulations,
other than by reason of the application of Section 856(d)(2)(B) or 856(d)(5) of
the Code or the Regulations, then Base Monthly Rent and/or all Additional Rent
shall be adjusted so that it will qualify (provided, however, that any
adjustments required pursuant to this Section shall be made so as to produce the
equivalent (in economic terms) Base Monthly Rent and Additional Rent as payable
prior to the adjustment).
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ARTICLE 14
CORPORATE AUTHORITY
BROKERS AND ENTIRE AGREEMENT
14.1 CORPORATE AUTHORITY. If Tenant is a corporation, Tenant represents and
warrants that it is validly formed and duly authorized and existing and that
Tenant has the full right and legal authority to enter into this Lease, and that
the Person executing this Lease on behalf of Tenant is duly authorized to do so
and to bind Tenant to the terms hereof. If Landlord is a corporation, Landlord
represents and warrants that it is validly formed and duly authorized and
existing and that Landlord has the full right and legal authority to enter into
this Lease, and that the Person executing this Lease on behalf of Landlord is
duly authorized to do so and to bind Tenant to the terms hereof.
14.2 BROKERAGE COMMISSIONS. Tenant represents and warrants that it has not
had any dealings with any real estate brokers, leasing agents, finders or
salesmen, other than the Brokers (as named in Article 1), with respect to its
leasing of the Premises pursuant to this Lease, and that Tenant shall indemnify,
defend and hold Landlord harmless from and against any liability for the payment
of any real estate brokerage commissions, leasing commissions or finder's fees
claimed by any other real estate brokers, leasing agents, finders, or salesmen
to be earned or due and payable by reason of Tenant's agreement or promise
(implied or otherwise) to pay (or to have Landlord pay) such a commission or
finder's fee by reason of Tenant's leasing the Premises pursuant to this Lease.
Landlord represents and warrants that it has not had any dealings with any real
estate brokers, leasing agents, finders or salesmen, other than the Brokers (as
named in Article 1), with respect to its leasing of the Premises pursuant to
this Lease, and that Landlord shall indemnify, defend and hold Tenant harmless
from and against any liability for the payment of any real estate brokerage
commissions, leasing commissions or finder's fees claimed by any other real
estate brokers, leasing agents, finders, or salesmen to be earned or due and
payable by reason of Landlord's agreement or promise (implied or otherwise) to
pay (or to have Tenant pay) such a commission or finder's fee by reason of
Tenant's leasing the Premises pursuant to this Lease. Landlord shall pay
Landlord's Broker a commission in connection with this Lease pursuant to
Landlord's separate written agreement with Landlord's Broker. Landlord's Broker
shall pay Tenant's Broker a portion of said commission pursuant to Landlord's
Broker's separate written agreement with Tenant's Broker. Landlord has no
obligation to pay Tenant's Broker any commission, fee or other compensation in
connection with this Lease.
14.3 ENTIRE AGREEMENT; MODIFICATIONS. This Lease and the Exhibits (as
described in Article 1), which Exhibits are by this reference incorporated
herein, constitute the entire agreement between the parties concerning the
subject matter hereof, and there are no other agreements, understandings or
representations between the parties relating to the lease or occupancy of the
Premises by Tenant. No changes, modifications or additions to this Lease shall
be effective, or otherwise binding upon the parties, unless in writing and
signed by both Landlord and Tenant.
14.4 LANDLORD'S REPRESENTATIONS. Tenant acknowledges that neither Landlord
nor any of its agents has made any representations or warranties, express or
implied, respecting the Premises or Property which are not expressly set forth
in this Lease. Tenant further acknowledges that neither Landlord nor any of its
agents has made any representations or warranties, express or implied, as to (i)
whether the Premises may be used for Tenant's intended use under existing Laws,
or (ii) the suitability of the Premises for the conduct of Tenant's business or
the fitness of the Premises for a particular purpose, or (iii) the exact square
footage of the Premises, and that Tenant relies solely upon its own
investigations with respect to such matters. Tenant expressly waives any and all
claims for damage by reason of any statement, representation, warranty, promise
or other agreement of Landlord or its agents, if any, not contained in this
Lease or in any Exhibit attached hereto.
14.5 LANDLORD EXCULPATION. It is expressly understood and agreed that
notwithstanding anything in this Lease to the contrary, and notwithstanding any
applicable Law to the contrary, the liability of Landlord and any recourse by
Tenant against Landlord shall be limited solely and exclusively to an amount
which is equal to the interest of Landlord in the Building, and neither Landlord
nor any owner, stockholder, director, officer, member or partner of Landlord
shall have any personal liability therefor, and
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Tenant hereby expressly waives and releases such personal liability on behalf of
itself and all Persons claiming by, through or under Tenant. Nothing in this
Section 14.5 shall be deemed to limit Tenant's recourse to any insurance or
condemnation proceeds of the Building.
ARTICLE 15
OPTION TO EXTEND
15.1 OPTION TO EXTEND; EXERCISE OF OPTION. So long as Xxxxxxxx & Company or
its Successor Assignee is the Tenant hereunder and occupies the entirety of the
Premises, and subject to the conditions set forth in Subsections (a) through (c)
below, Tenant shall have the option to extend the initial Lease Term with
respect to the entirety of the Premises for three (3) consecutive five (5) year
periods immediately following the last day of the initial Lease Term (each, an
"Extension Period"), subject to the following conditions:
(a) The option to extend shall be exercised, if at all, by written
notice of exercise given to Landlord by Tenant not more than fifteen (15) months
nor less than twelve (12) months prior to the expiration of the initial Lease
Term or the first two (2) Extension Periods, as the case may be. Any purported
notice of exercise not complying with this Subsection shall be of no force or
effect.
(b) Anything herein to the contrary notwithstanding, if an Event of
Default exists at the time Tenant exercises its option with respect to any
Extension Period, such exercise shall be of no force or effect and this Lease
shall expire on the last day of the then current Lease Term, it being understood
that the option granted Tenant hereunder is conditioned upon an Event of Default
existing at the time Tenant exercises or purports to exercise its option with
respect to any Extension Period.
(c) Anything herein to the contrary notwithstanding, if an Event of
Default exists on the commencement date of any applicable Extension Period,
Tenant's prior exercise shall be of no force or effect, the Extension Period
shall not take effect, and this Lease shall expire on the last day of the then
current Lease Term, it being understood that the option granted Tenant hereunder
is conditioned upon no Event of Default existing on the commencement date of any
applicable Extension Period.
(d) Anything herein to the contrary notwithstanding, Tenant's option
with respect to the second and third Extension Periods shall terminate and be of
no force or effect if Tenant does not timely exercise its option with respect to
the first Extension Period or the first Extension Period is not in effect, and
Tenant's option with respect to the third Extension Period shall terminate and
be of no force or effect if Tenant does not timely exercise its option with
respect to the second Extension Period or the second Extension Period is not in
effect.
15.2 DETERMINATION OF BASE MONTHLY RENT. If the option to extend is
exercised in a timely fashion, this Lease shall be extended for the term of the
applicable Extension Period upon all of the terms and conditions of this Lease
(other than this Article 15), provided that the Base Monthly Rent for the
applicable Extension Period shall be the greater of (a) the "Fair Market Rent"
for the Premises, increased as set forth in the last sentence of this paragraph,
or (b) the amount of Base Monthly Rent in effect as of the last day of the
initial Lease Term or immediately preceding Extension Periods, applicable. For
purposes hereof, "Fair Market Rent" shall mean the then prevailing market rental
rate, as of the date of Tenant's notice, on a per rentable square foot basis,
taking into account all relevant factors, including, without limitation, size of
space, age, location and quality of building, length of term, method of paying
operating costs, services provided, financial quality of the Tenant, and
including a determination of the improvement allowances, brokerage commissions
or other concessions then being provided as part of a market rate transaction.
When the Fair Market Rent has been finally determined pursuant to this Article
15, Tenant shall pay as Base Monthly Rent during the applicable Extension Period
the greater of (a) the Fair Market Rent or (b) the amount of Base Monthly Rent
in effect as of the last day of the initial Lease Term or immediately preceding
Extension Period, as applicable. Fair Market Rent shall include fair market
annual increases of Base Monthly Rent at the end of each subsequent 12-month
period during each applicable Extension Period.
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(a) Within ten (10) days after receipt of Tenant's notice of exercise,
Landlord shall notify Tenant in writing of Landlord's estimate of the Fair
Market Rent to be used as Base Monthly Rent for the applicable Extension Period,
based on the provisions of Section 15.2 above. If Landlord does not receive
written notice from Tenant of Tenant's disagreement with Landlord's
determination of the Fair Market Rent within forty-five (45) days after Tenant's
receipt of said determination, Tenant shall be deemed to have accepted said
determination and such determination shall be binding upon Landlord and Tenant
as the Fair Market Rent for the Premises and as the Base Monthly Rent to be paid
by Tenant during the applicable Extension Period.
(b) If Tenant disagrees with Landlord's determination of the Fair
Market Rent, then, for a period of thirty (30) days thereafter (the "Conference
Period"), Landlord and Tenant shall use their good faith efforts to agree upon a
Fair Market Rent, failing which Tenant shall have the right, by written notice
given to Landlord within ten (10) days after such Conference Period, to request
that Fair Market Rent be determined by appraisal in accordance with the
following provisions (an "Appraisal Request"). In such event, the Fair Market
Rent shall be determined by impartial appraisers possessing the necessary
qualifications described herein, one to be chosen by Landlord and one to be
chosen by Tenant (each an "Initial Appraiser") taking into consideration the
factors listed in Section 15.2 above. Landlord and Tenant each shall notify the
other of its Initial Appraiser within ten (10) days following delivery of the
Appraisal Request by Tenant. The cost of each Initial Appraiser shall be paid by
the party selecting such Initial Appraiser.
(c) The Initial Appraisers shall render their written appraisal of the
Fair Market Rent for the applicable Extension Period within thirty (30) days
following their appointment. If the appraisals by each of the Initial Appraisers
are less than five percent (5%) apart (that is, if the higher appraisal is more
than 105% of the lower appraisal), then the Fair Market Rent shall be determined
by taking the average of the two appraisals. In the event such appraisals are
five percent (5%) or more apart, then Tenant shall have the right, exercisable
by delivering written notice to Landlord not later than five (5) business days
after the Initial Appraisers render their written appraisals, to rescind
Tenant's exercise of its extension option, failing which the Initial Appraisers
shall promptly select a third appraiser who meets the same criteria as required
of the Initial Appraisers (the "Third Appraiser"). The Third Appraiser shall
select the appraisal of one of the Initial Appraisers which it considers to be
the closest in Fair Market Rent, which appraisal shall be binding upon Landlord
and Tenant as the Fair Market Rent of the Premises and as the Base Monthly Rent
to be paid by Tenant during the applicable Extension Period. The cost of the
Third Appraiser shall be borne equally by Landlord and Tenant.
(d) Each appraiser selected hereunder shall be MAI certified,
independent, have at least five (5) years' experience with commercial properties
in the area, be familiar with commercial leases and rents in the Atlanta,
Georgia Central Perimeter Market, be experienced in making real estate
appraisals.
(e) Landlord shall have no obligation to make any contribution towards
any renovation of the Premises or provide any rent-free or reduced-rent period
of occupancy and Tenant shall accept possession of the Premises in their "AS-IS"
condition on the commencement date of the applicable Extension Period.
ARTICLE 16
SECURITY DEPOSIT
16.1 SECURITY DEPOSIT (CASH). Tenant shall upon execution hereof deposit
with Landlord the sum of Three Million Two Hundred Ninety Four Thousand Seventy
Two Dollars ($3,294,072.00) (the "Security Deposit") as security for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this Lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions or conditions of this Lease including
the payment of Base Monthly Rent, Additional Rent, or any other sum due
hereunder, Landlord may use, apply or retain the whole or any part of the
Security Deposit so deposited to the extent required for the payment of any Base
Monthly Rent, Additional Rent or other sum due hereunder or for any sum which
Landlord may expend or may be
-53-
required to expend by reason of Tenant's default including any damages or
expenses suffered or incurred by reason of Tenant's default. Tenant shall,
within five (5) days of Landlord's written demand therefor, deposit with
Landlord the full amount of Security Deposit so used or applied by Landlord, in
order that Landlord shall have the full Security Deposit on hand at all times
prior to the Return Date (as defined below). If on or after the last day of the
sixtieth (60th) full calendar month of the Lease Term (the "Return Date")
Landlord holds all or any part of the Security Deposit (in cash) and Tenant is
not then in default under any of the terms, covenants or conditions of this
Lease, then Landlord shall return the Security Deposit (or part thereof) so held
by Landlord to Tenant within thirty (30) days following the Return Date. In the
event of a sale or other transfer of the Property or any part thereof including
the Building or ground or master leasing of the Property or any part thereof
including the Building, Landlord shall have the right to transfer the Security
Deposit to the transferee or lessee and Landlord shall thereupon be released by
Tenant from all liability for the return of the Security Deposit and Tenant
agrees to look to the new landlord solely for the return of the Security
Deposit; and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the Security Deposit to a new landlord. Tenant
further covenants that it shall not assign or encumber or attempt to assign or
encumber the monies deposited herein as security and that neither Landlord nor
its successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
16.2 SECURITY DEPOSIT (LETTER OF CREDIT). Notwithstanding Section 16.1
above, instead of depositing cash with Landlord as the Security Deposit Tenant
may, at its option, deliver to Landlord, as and for the Security Deposit, a
clean, irrevocable, unconditional and negotiable commercial letter of credit
(the "Letter of Credit") issued by and drawable upon SunTrust Bank or any
commercial bank, trust company, national banking association or savings and loan
association with offices for banking purposes in Atlanta, Georgia (the "Issuing
Bank"), which has outstanding unsecured, uninsured and unguaranteed
indebtedness, or shall have issued a letter of credit or other credit facility
that constitutes the primary security for any outstanding indebtedness (which is
otherwise uninsured and unguaranteed), that is then rated, without regard to
qualification of such rating by symbols such as "+" or "-" or numerical
notation, "Aa" or better by Xxxxx'x Investors Service and "AA" or better by
Standard & Poor's Rating Service, and has combined capital, surplus and
undivided profits of not less than $500,000,000. Such Letter of Credit shall (a)
name Landlord as beneficiary, (b) be in the full amount of the Security Deposit,
(c) have a term of not less than one year, (d) permit multiple drawings, (e) be
fully transferable by Landlord without the payment of any fees or charges by
Landlord in excess of $500, and (f) otherwise be in form and content
satisfactory to Landlord in its sole discretion. If upon any transfer of the
Letter of Credit, any fees or charges in excess of $500 shall be so imposed,
then such fees or charges shall be payable solely by Tenant and the Letter of
Credit shall so specify. The Letter of Credit shall provide that it shall be
deemed automatically renewed, without amendment, for consecutive periods of one
year each thereafter during the first sixty (60) full calendar months of the
Lease Term (and in no event shall the Letter of Credit expire prior to the last
day of the sixty first (61st) full calendar month of the Lease Term) unless the
Issuing Bank sends a notice (the "Non-Renewal Notice") to Landlord by certified
mail, return receipt requested, not less than sixty (60) days next preceding the
then expiration date of the Letter of Credit stating that the Issuing Bank has
elected not to renew the Letter of Credit. Landlord shall have the right, upon
receipt of the Non-Renewal Notice, to draw the full amount of the Letter of
Credit, by sight draft on the Issuing Bank, and shall thereafter hold or apply
the cash proceeds of the Letter of Credit pursuant to the terms of Section 16.1
above until Tenant delivers to Landlord a substitute Letter of Credit in the
full amount of the Security Deposit which meets the requirements of this Section
16.2. Tenant shall reimburse Landlord on demand for any attorneys' fees incurred
by Landlord in connection with reviewing any renewals, extensions or
substitutions of the Letter of Credit, ensuring that the provisions of any
renewals, extensions or substitutions of the Letter of Credit comply with the
provisions of this Article 16, drawing down upon the proceeds of any Letter of
Credit delivered to Landlord hereunder, or ensuring that the cash Security
Deposit and/or Letter of Credit is maintained as required under this Lease. The
Issuing Bank shall agree with all drawers, endorsers and bona fide holders that
drafts drawn under and in compliance with the terms of the Letter of Credit will
be duly honored upon presentation to the Issuing Bank at an office in the County
of Santa Clara, California. The Letter of Credit shall be subject in all
respects to the International Standby Practices 1998, International Chamber of
Commerce Publication No. 590.
-54-
If during Lease Term the Letter of Credit and/or the proceeds of all or
part of the Letter of Credit shall become less than the full amount of the
Security Deposit (i.e., $3,294,072.00), then and in such event Tenant shall,
within five (5) days of Landlord's written demand, deposit with Landlord (in
cash or in the form of a replacement Letter of Credit complying with the terms
of this Section 16.2) the amount of any cash Security Deposit and/or Letter of
Credit theretofore used or applied by Landlord pursuant to the terms hereof in
order that Landlord shall have the full Security Deposit (i.e., $3,294,072.00)
on hand at all times through the Return Date. If on or after the Return Date
Landlord holds the Letter of Credit (or part thereof) and Tenant is not then in
default under any of the terms, covenants or conditions of this Lease, then
Landlord shall turn over the Letter of Credit (or part thereof) so held by
Landlord to Tenant within thirty (30) days following the Return Date.
Upon a sale or other transfer of the Property or the Building, Landlord
shall have the right to transfer the Security Deposit (whether in the form of
cash and/or the Letter of Credit) to its transferee. With respect to the Letter
of Credit, within ten (10) business days after written notice of such transfer,
Tenant, at its sole cost in excess of $500, shall arrange for the transfer of
the Letter of Credit to the transferee/new Landlord, as designated by Landlord
in the foregoing notice or have the Letter of Credit reissued in the name of the
transferee/new Landlord. Upon such transfer, Tenant shall look solely to the
transferee/new Landlord for the return of the cash Security Deposit and/or
Letter of Credit, as the case may be, and the provisions hereof shall apply to
every transfer or assignment made of the cash Security Deposit and/or Letter of
Credit to a new landlord. Tenant shall not assign or encumber or attempt to
assign or encumber the cash Security Deposit and/or Letter of Credit and neither
Landlord nor its successors or assigns shall be bound by any such action or
attempted assignment, or encumbrance.
16.3 DRAWS. Landlord agrees not to draw upon the Letter of Credit unless
(a) Landlord has received a Non-Renewal Notice form the Issuing Bank or (b)
Tenant has permitted the Letter of Credit to
[signatures follow on next page]
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lapse without delivery to Landlord of a substitute Letter of Credit in the full
amount of the Security Deposit and otherwise meeting the requirements of this
Section 16.2 or (c) Landlord claims an Event of Default by Tenant has occurred
under this Lease (after giving such notice of default to Tenant if and as may be
required under the terms of this Lease). If there shall occur an Event of
Default under this Lease, Landlord may, but without obligation to do so, in
addition to any other rights and remedies held by Landlord, draw upon the entire
amount of the Letter of Credit and/or utilize any cash Security Deposit for any
purpose described in Section 16.1.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
respective dates below set forth with the intent to be legally bound thereby as
of the Lease Commencement Date first above set forth.
LANDLORD:
HEWLETT-PACKARD COMPANY,
a Delaware corporation
Dated: July 27, 2006 By: /s/ X.X. X'Xxxxx
------------------------------------
Name: Xxxxxxx X'Xxxxx
----------------------------------
Title: R.E. Mgr.
----------------------------------
TENANT:
XXXXXXXX & COMPANY,
a Georgia corporation
Dated: June 22, 2006 By: /s/ X.X. Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
----------------------------------
Title: SVP - Controller and Interim CFO
---------------------------------
By: /s/ R.E. Powers III
------------------------------------
Name: R. Xxxx Xxxxxx
----------------------------------
Title: Assistant Corporate Secretary
---------------------------------
-56-
EXHIBIT "A"
SITE PLAN
-1-
EXHIBIT "B"
FLOOR PLAN
-1-
EXHIBIT "C"
FORM OF ESTOPPEL CERTIFICATE
_____________________, 20__
___________________________
___________________________
___________________________
___________________________
Re: _____________________
____________, Georgia
Ladies and Gentlemen:
Reference is made to that certain Lease, dated as of _________, 2006, between
Hewlett-Packard Company ("Landlord"), and the undersigned (herein referred to as
the "Lease"). A copy of the Lease [and all amendment thereto] is[are] attached
hereto as EXHIBIT A. At the request of Landlord in connection with [____________
State reasons for request for estoppel certificate __________], the undersigned
hereby certifies to Landlord and to [_____________ State names of other parties
requiring certification __________] and each of your respective successors and
assigns as follows:
1. The undersigned is the tenant under the Lease.
2. The Lease is in full force and effect and has not been amended,
modified, supplemented or superseded except as indicated in EXHIBIT A.
3. There is no defense, offset, claim or counterclaim by or in favor of the
undersigned against Landlord under the Lease or against the obligations of the
undersigned under the Lease, except as may be indicated on EXHIBIT B hereto. The
undersigned has no renewal, extension or expansion option, no right of first
offer or right of first refusal and no other similar right to renew or extend
the term of the Lease or expand the property demised thereunder except as may be
expressly set forth in the Lease.
4. The undersigned is not aware of any default now existing of the
undersigned or of Landlord under the Lease, nor of any event which with notice
or the passage of time or both would constitute a default of the undersigned or
of Landlord under the Lease, except as may be indicated on EXHIBIT B hereto.
5. The undersigned has not received notice of a prior transfer, assignment,
hypothecation or pledge by Landlord of any of Landlord's interest in the Lease,
except as set forth in EXHIBIT A.
6. The monthly rent due under the Lease is $_________ and has been paid
through ______________, and all additional rent due and payable under the Lease
has been paid through ___________________.
7. The term of the Lease commenced on ________________, and expires on
_________________, unless sooner terminated or unless extended pursuant to the
provisions of the Lease. Landlord has performed all work required by the Lease
for the undersigned's initial occupancy of the demised premises.
-1-
8. The undersigned has deposited the sum of $___________ with Landlord as
security for the performance of its obligations as tenant under the Lease, and
no portion of such deposit has been applied by Landlord to any obligation under
the Lease.
9. There is no free or reduced rent period pending, nor is Tenant entitled
to any Landlord's contribution, except as may be expressly set forth in the
Lease.
The above certifications are made to Landlord and [insert reference to
lender, purchaser, or other appropriate party] knowing that Landlord and Lender
will rely thereon in accepting an assignment of the Lease.
Very truly yours,
-------------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
-2-
EXHIBIT "D"
WORK LETTER
-1-
TENANT WORK LETTER
This Tenant Work Letter ("TENANT WORK LETTER") shall set forth the terms
and conditions relating to the construction of the Tenant Improvements in the
Premises. All references in this Tenant Work Letter to the "LEASE" shall mean
the relevant portions of the Lease to which this Tenant Work Letter is attached
as EXHIBIT "D". Unless otherwise defined herein, all initially capitalized terms
used herein shall have the meanings ascribed to them in the Lease. The "Initial
Tenant Improvement Work" defined in the Lease shall refer to the Tenant
Improvements described hereinbelow.
SECTION 1
ACCEPTANCE
Except as set forth in the next paragraph, Tenant accepts the Premises in
their current "As-Is" condition. Tenant acknowledges and agrees that Landlord
has not made any representations, warranties or other assurances, express or
implied, regarding the condition of the Premises, the ability of Tenant to
construct the Tenant Improvements on the Premises, or the Premises' fitness or
suitability for Tenant's intended use. Except as set forth in the next paragraph
and except for the Tenant Improvement Allowance set forth below, Landlord shall
not be required to make or pay for any alterations, repairs, upgrades or
improvements to the Premises.
If as of the Lease Commencement Date the First Phase Premises, as used,
configured and constructed immediately prior to the Lease Commencement Date, do
not comply with the Americans with Disabilities Act in the form enacted at the
time of the initial construction and installation thereof and as interpreted by
the applicable governmental authority with jurisdiction at such time, Landlord
shall be responsible for correcting such non-compliance, at no expense to
Tenant. If as of the date Landlord tenders possession of the Second Phase
Premises the Second Phase Premises, as used, configured and constructed
immediately prior to such date, do not comply with the Americans with
Disabilities Act in the form enacted at the time of the initial construction and
installation thereof and as interpreted by the applicable governmental authority
with jurisdiction at such time, Landlord shall be responsible for the costs of
correcting such non-compliance, at no expense to Tenant. When Landlord delivers
possession of the First Phase Premises to Tenant pursuant to the Lease, Landlord
shall, at Landlord's sole expense, cause the same be delivered "broom clean" and
free of debris. When Landlord delivers possession of the Second Phase Premises
to Tenant pursuant to the Lease, Landlord shall, at Landlord's sole expense,
cause the same be delivered "broom clean" and free of debris.
SECTION 2
TENANT IMPROVEMENTS
2.1 Tenant Improvement Allowance. Tenant shall be entitled to a one-time
tenant improvement allowance (the "TENANT IMPROVEMENT ALLOWANCE") in the amount
of up to, but not exceeding Thirty One Dollars ($31.00) per rentable square foot
of the Premises (i.e., up to Four Million Nine Hundred Twenty-One Thousand Two
Hundred Eighty-One and 00/100 Dollars ($4,921,281.00) based on 158,751 rentable
square feet of the Premises), for the costs relating to the initial design and
construction of Tenant's improvements which are to be affixed to the Premises
(the "TENANT IMPROVEMENTS") and certain other costs to be incurred by Tenant in
connection with its initial move into and fit-up of the Premises; provided,
however, that Landlord shall have no obligation to disburse all or any portion
of the Tenant Improvement Allowance to Tenant unless Tenant makes a request for
disbursement pursuant to the terms and conditions of Section 2.2 below prior to
that date which is twelve (12) months after the First Phase RCD. In no event
shall Landlord be obligated to make disbursements pursuant to this Tenant Work
Letter or otherwise in excess of $3,658,465.00 for the First Phase Tenant
Improvements (as defined below) and $1,262,816.00 for the Second Phase Tenant
Improvements (as
defined below). If the Lease terminates with respect to the Second Phase
Premises as provided in Paragraph 2.1(C) of the Lease, then the Tenant
Improvement Allowance shall be limited to the First Phase Premises only and
therefore reduced to a maximum of $3,658,465.00. No portion of the Tenant
Improvement Allowance shall be disbursed for the Second Phase Tenant
Improvements unless and until Landlord has tendered and Tenant has accepted the
Second Phase Premises. Except as otherwise set forth in Section 2.3 below,
Tenant shall not be entitled to receive any cash payment or credit against Rent
or otherwise for any unused portion of the Tenant Improvement Allowance which is
not used to pay for the Tenant Improvement Allowance Items (as defined below).
Notwithstanding anything to the contrary herein or in the Lease, Landlord shall
have no obligation to grant or disburse the Tenant Improvement Allowance or any
part thereof if (i) at the time of Tenant's request for payment (a) an Event of
Default under the Lease, or an event which with the passage of time or giving of
notice would constitute an Event of Default under the Lease, shall exist or (b)
Tenant shall have assigned its interest in the Lease to any party other than a
Successor Assignee or sublet all or any part of the Premises, or (ii) the labor
and/or materials for which Tenant seeks payment has not yet been performed and
incorporated into the Premises. Except for disbursement of the Tenant
Improvement Allowance in accordance with the terms and conditions of this Tenant
Work Letter, under no circumstances shall Landlord be required to provide Tenant
with any funds or allowances with respect to the Tenant Improvements or
Premises, and all costs associated with the design, construction, or any other
aspect of the Tenant Improvements or Premises in excess of the Tenant
Improvement Allowance shall be borne and paid for solely by Tenant without any
credit, reimbursement or other compensation from Landlord.
2.2 Disbursement of the Tenant Improvement Allowance.
2.2.1 Tenant Improvement Allowance Items. Except as otherwise set
forth in Section 2.3 below, the Tenant Improvement Allowance shall be disbursed
by Landlord only for the following items and costs (collectively, the "TENANT
IMPROVEMENT ALLOWANCE ITEMS"):
2.2.1.1 payment of the fees and charges of the "Design
Professionals" (as defined in Section 3.1 below), and payment of the fees
incurred by, and the cost of documents and materials supplied by, Landlord and
Landlord's consultants in connection with the preparation and review of the
"Construction Drawings" (as defined in Section 3.1 below);
2.2.1.2 the payment of plan check, permit and license fees
relating to construction of the Tenant Improvements;
2.2.1.3 the cost of construction of the Tenant Improvements as
reflected in the "Approved Working Drawings" (as defined in Section 3.4 below)
including, without limitation, contractors' fees and general conditions, testing
and inspection costs, costs of all materials, supplies, and equipment
incorporated in the Tenant Improvements, the cost of the premiums for all
insurance or any bonds which Tenant or its Contractor is required to procure by
this Work Letter or which is deemed necessary by Tenant, costs of utilities,
trash removal, parking and hoists.
2.2.1.4 the cost of any changes in the Tenant Improvements when
such changes are required by the Construction Drawings (including if such
changes are due to the fact that such work is prepared on an unoccupied basis),
such cost to include all direct architectural and/or engineering fees and
expenses incurred in connection therewith;
2.2.1.5 the cost of any changes (if any) to the Construction
Drawings or Tenant Improvements required by applicable Laws;
2.2.1.6 sales and use taxes related to the design and
construction of the Tenant Improvements; and
2.2.1.7 all other direct costs to be expended by Tenant in
connection with the construction of the Tenant Improvements.
2
2.2.2 Disbursement of Tenant Improvement Allowance. Subject to Section
2.1 above, during the construction of the Tenant Improvements, Landlord shall
make monthly disbursements of the Tenant Improvement Allowance for Tenant
Improvement Allowance Items for the benefit of Tenant and shall authorize the
release of monies for the benefit of Tenant as follows:
2.2.2.1 Monthly Disbursements. Not more than once each calendar
month during the construction of the Tenant Improvements, Tenant shall deliver
to Landlord: (i) a request for payment of the Contractor (as defined in Section
4.1 below) approved by Tenant, in substantially the form of AIA Document G702 or
other commercially reasonable form acceptable to Landlord; (ii) true and
complete copies of invoices from all of Tenant's Agents (as defined in Section
4.1.2 below) for labor rendered and/or materials delivered to the Premises
evidencing costs (not previously paid from the Tenant Improvement Allowance) for
Tenant Improvement Allowance Items at least in the amount requested; (iii)
executed conditional mechanic's lien releases from the Contractor and all
material subcontractors (i.e., those providing labor, services and/or materials
at a charge or for a fee in excess of $5,000) to be paid with the proceeds of
such disbursement request in form and substance reasonably satisfactory to
Landlord; and (iv) a certificate from the Design Professional (that is a
licensed architect) in favor of Landlord certifying that the construction of the
Tenant Improvements (through the date of the request for payment) has been
completed substantially in accordance with the Approved Working Drawings.
Subject to Section 2.1 above and Tenant's compliance with the first (1st)
sentence of this Section 2.2.2.1, within thirty (30) days following the date of
Tenant's request for payment, Landlord shall deliver a check to Tenant made
jointly payable to the Contractor and Tenant in payment of the lesser of (A) the
amounts so requested by Tenant, as set forth in the first (1st) sentence of this
Section 2.2.2.1, less any applicable retention and (B) the balance of any
remaining available portion of the Tenant Improvement Allowance (not including
any applicable retention), provided that Landlord does not dispute any request
for payment based on non-compliance of any work with the Approved Working
Drawings or due to any defective or substandard work. Landlord's payment of such
amounts shall not constitute Landlord's approval or acceptance of the work
furnished or materials supplied as set forth in Tenant's payment request.
2.2.2.2 Retention. Prior to final completion of the First Phase
Tenant Improvements and the Second Phase Tenant Improvements, respectively,
Landlord's disbursements for Tenant Improvement Allowance Items relating to the
applicable Phase shall be subject to a ten percent (10%) retention. Subject to
the provisions of this Tenant Work Letter, a check made payable jointly to
Tenant and the Contractor for the aggregate amount of such retentions on the
applicable Phase of the Premises shall be delivered by Landlord to Tenant within
thirty (30) days following final completion of construction of the Tenant
Improvements for the applicable Phase, provided that (i) Tenant has delivered to
Landlord (A) properly executed mechanics lien releases from the Contractor and
all material subcontractors (i.e., those providing labor, services and/or
materials at a charge or for a fee in excess of $5,000) involved in the
construction of such Phase in form and substance reasonably satisfactory to
Landlord, (B) a certificate from the Design Professional (that is a licensed
architect) in favor of Landlord certifying that the construction of the Tenant
Improvements for the applicable Phase has been completed substantially in
accordance with the Approved Working Drawings, and (C) Landlord has received the
items described in the last sentence of Section 4.3 below with respect to the
applicable Phase, and (D) a request for payment of the Contractor, approved by
Tenant, in substantially the form of AIA Document G702 or other commercially
reasonable form acceptable to Landlord; and (ii) Landlord has reasonably
determined that no work exists which adversely affects (1) the mechanical
(including HVAC), electrical, plumbing, life-safety or other systems of the
Building, (2) the structure or exterior appearance of the Building, or (3) any
other tenant's or occupant's (including Landlord's) use of the premises leased
or occupied by it. Tenant's request for payment shall be deemed Tenant's
acceptance and approval of work furnished and/or the materials supplied as set
forth in Tenant's payment request and in all payment requests previously
delivered to Landlord. Notwithstanding the foregoing, if Tenant or the
Contractor is in dispute with any subcontractor and is therefore unable to
obtain a final waiver of lien from such subcontractor but Tenant has satisfied
the other conditions to disbursement hereunder, Tenant nevertheless shall be
entitled to obtain disbursement of the retainage amount for the applicable Phase
to the extent, if any, that the retainage amount for such Phase exceeds 115% of
the amount in dispute. As used herein, the "First Phase Tenant Improvements"
shall mean the Tenant Improvements to be
3
constructed and installed by Tenant in the First Phase Premises. As used herein,
the "Seccond Phase Tenant Improvements" shall mean the Tenant Improvements to be
constructed and installed by Tenant in the Second Phase Premises.
2.2.2.3 Other Terms. Except as otherwise set forth in Section 2.3
below, Landlord shall only be obligated to make disbursements from the Tenant
Improvement Allowance to the extent costs are incurred by Tenant for Tenant
Improvement Allowance Items. All Tenant Improvements for which the Tenant
Improvement Allowance has been made available shall be deemed Landlord's
property under the Lease. If there is any dispute regarding the amount to be
disbursed to Tenant with respect to the Tenant Improvement Allowance, Landlord
shall disburse to Tenant the amount, if any, that is not in dispute and the
disputed amount shall be withheld from disbursement pending resolution of such
dispute.
2.2.3 Specifications for Building Standard Components. Landlord has
established specifications (the "Specifications") for the Building standard
components to be used in the construction of the Tenant Improvements in the
Premises which Specifications have been received by Tenant. The Tenant
Improvements shall comply with the Specifications, except to the extent Landlord
may otherwise agree in writing.
2.3 Application by Tenant of Unused Tenant Improvement Allowance. Except as
provided in this Section 2.3, Tenant shall not be entitled to the use of (as a
credit against Rent or otherwise) any portion of the Tenant Improvement
Allowance that is not used in payment of Tenant Improvement Allowance Items.
Notwithstanding the foregoing, subject to Tenant's delivery of requests for
disbursement accompanied by copies of reasonable supporting documentation
evidencing such costs incurred by Tenant, Tenant may utilize up to Five Dollars
($5.00) per rentable square foot of the Tenant Improvement Allowance (i.e. up to
Seven Hundred Ninety-Three Thousand Seven Hundred Fifty-Five and 00/100 Dollars
($793,755) of the Tenant Improvement Allowance (the "Move-In and Cabling
Allocation") for any or all of the following: (i) Tenant's actual and documented
out-of-pocket costs to install telecommunications cabling within the Premises,
to the extent such work is approved by Landlord as part of the Approved Working
Drawings or pursuant to Article 6 of the Lease or (ii) Tenant's actual and
documented out-of-pocket costs to move its personnel, furniture and equipment
from Tenant's current offices to the Premises after completion of the First
Phase Premises or Second Phase Premises, as applicable. Landlord shall deliver a
check to Tenant in the amount of any such costs, subject to the limits
hereinabove provided and the remaining available balance of the total Tenant
Improvement Allowance, within thirty (30) days following the date of Tenant's
request for disbursement and related materials. Notwithstanding the foregoing,
Tenant shall not submit any requests for payment for, or be entitled to receive
any of the Move In and Cabling Allocation for, any of the above items relating
to the Second Phase Premises unless and until Landlord has tendered and Tenant
has accepted the Second Phase Premises.
SECTION 3
CONSTRUCTION DRAWINGS
3.1 Selection of Design Professionals/Construction Drawings. Tenant shall
retain, subject to the prior written approval by Landlord (not to be
unreasonably withheld or delayed), as appropriate, a qualified and duly licensed
architect/space planner (with appropriate engineering expertise, either in-house
or on a subcontracting basis) (in any case, being individually referred to
herein as a "Design Professional" and collectively referred to herein as "Design
Professionals") to prepare schematic and architectural and engineering plans,
drawings and specifications incorporating the level of detail (a) necessary for
Tenant to allow subcontractors to bid on the Tenant Improvement work and to
obtain all applicable permits for the Tenant Improvements, (b) necessary for the
Tenant Improvements to be constructed in compliance with all applicable Laws,
and (c) consistent with plans, drawings and specifications used to construct
similar tenant improvements in a Class A multi-tenant office buildings in the
Central Perimeter Market of Atlanta, Georgia. Landlord agrees that Tenant may
use HOK; Gensler, Rule Xxxxxxxx Xxx Xxxxx; or Xxxxxxxx as Tenant's architect in
connection with the Tenant Improvements.
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The plans and drawings to be prepared by the Design Professionals hereunder
shall be known collectively as the "Construction Drawings" and shall include the
Final Space Plan, the Final Working Drawings, and the Approved Working Drawings,
as described below. All Construction Drawings shall comply with the drawing
format and specifications reasonably determined by Landlord, and shall be
subject to Landlord's approval as provided below. Further, Tenant shall cause
the Construction Drawings to be prepared in compliance with all applicable
codes, ordinances and other applicable Laws (including, without limitation, the
Americans with Disabilities Act). Tenant and Tenant's Design Professionals shall
verify, in the field, the dimensions and condition of the Premises. Landlord's
or its agents' review of the Construction Drawings shall be for Landlord's sole
internal purpose and shall not imply Landlord's review of the same, or obligate
Landlord to review the same, for quality, design, compliance with Laws, or any
other matter. Accordingly, notwithstanding that any Construction Drawings are
reviewed by Landlord or its agents, and notwithstanding any advice or assistance
which may be rendered by Landlord or Landlord's agents, Landlord shall have no
liability whatsoever in connection therewith and shall not be responsible for
any omissions or errors contained in the Construction Drawings.
3.2 Final Space Plan. Promptly after preparation thereof by the Design
Professionals, Tenant shall supply Landlord with four (4) copies signed by
Tenant of its final space plan for the Premises. The final space plan (the
"FINAL SPACE PLAN") shall include a layout and designation of all offices, rooms
and other partitioning, their intended use, and equipment to be contained
therein. Landlord may request clarification or more specific drawings for
special use items not included in the Final Space Plan. Landlord shall advise
Tenant within ten (10) days after Landlord's receipt of the proposed Final Space
Plan if, in Landlord's reasonable discretion (except as provided below), the
same is unsatisfactory or incomplete in any respect. Any notice of disapproval
of the Final Space Plan by Landlord shall include the reasons for Landlord's
disapproval and a description of the revisions which would be required in order
to obtain Landlord's approval. If Landlord fails to approve or disapprove (in
any respect) Tenant's proposed Final Space Plan within said ten (10) day period
and thereafter (a) Tenant delivers written notice to Landlord expressly stating
in bold-faced capitalized letters that Landlord must either approve or
disapprove Tenant's proposed Final Space Plan within five (5) business days
following the date Landlord receives such notice and (b) within said five (5)
business day period Landlord does not deliver to Tenant written notice of its
approval or disapproval (in any respect) of Tenant's proposed Final Space Plan,
Landlord shall be deemed to have approved Tenant's proposed Final Space Plan. If
Landlord advises Tenant that the proposed Final Space Plan is unsatisfactory or
incomplete in any respect, Tenant shall promptly (i) cause the Final Space Plan
to be revised to correct any deficiencies or other matters Landlord may
reasonably require, and (ii) deliver such revised Final Space Plan to Landlord.
Notwithstanding anything to the contrary herein, Landlord may withhold its
approval of any proposed Final Space Plan in Landlord's sole and absolute
discretion with respect to any aspect of the proposed Final Space Plan that may
affect (a) the structural elements or components of the Building, or (b) any
mechanical (including HVAC), electrical, plumbing, life safety, or sprinkler
systems in or serving the Premises or any other part of the Building, (c) the
exterior of the Building, or (d) the premises of any other tenant or occupant
(including Landlord) of the Building.
3.3 Final Working Drawings. After the Final Space Plan has been approved by
Landlord and Tenant, Tenant shall promptly cause the Design Professionals to
complete and compile a fully coordinated set of architectural and engineering
drawings and specifications, as applicable, for the Premises incorporating the
level of detail (a) necessary for Tenant to allow general contractors and
subcontractors to bid on the Tenant Improvement work and to obtain all
applicable permits for the Tenant Improvements, (b) necessary for the Tenant
Improvements to be constructed in compliance with all applicable Laws, and (c)
consistent with plans, drawings and specifications used to construct tenant
improvements in a Class A multi-tenant office buildings in the Central Perimeter
Market of Atlanta, Georgia (collectively, the "FINAL WORKING DRAWINGS"), and
shall submit the same to Landlord for Landlord's approval. Landlord shall advise
Tenant within ten (10) days after Landlord's receipt of the proposed Final
Working Drawings if, in Landlord's reasonable discretion (except as provided
below), the same are unsatisfactory or incomplete in any respect. Any notice of
disapproval of the Final Working Drawings by Landlord shall include the reasons
for Landlord's disapproval and a description of the revisions which would be
required in order to obtain Landlord's approval. If Landlord fails to approve or
5
disapprove (in any respect) Tenant's proposed Final Working Drawings within said
ten (10) day period and thereafter (a) Tenant delivers written notice to
Landlord expressly stating in bold-faced capitalized letters that Landlord must
either approve or disapprove Tenant's proposed Final Working Drawings within
five (5) business days following the date Landlord receives such notice and (b)
within said five (5) business day period Landlord does not deliver written
notice to Tenant of its approval or disapproval (in any respect) of Tenant's
proposed Final Working Drawings, Landlord shall be deemed to have approved
Tenant's proposed Final Working Drawings. If Landlord advises Tenant that the
proposed Final Working Drawings are unsatisfactory or incomplete in any respect,
Tenant shall promptly (i) revise the Final Working Drawings in accordance with
such review and any disapproval of Landlord in connection therewith, and (ii)
deliver such revised Final Working Drawings to Landlord. Notwithstanding
anything to the contrary herein, Landlord may withhold its approval of any
proposed Final Working Drawings in Landlord's sole and absolute discretion with
respect to any aspect of the proposed Final Working Drawings that is
inconsistent with the Final Space Plan or that may affect (a) the structural
elements or components of the Building, or (b) any mechanical (including HVAC),
electrical, plumbing, life safety, or sprinkler systems in or serving the
Premises or any other part of the Building, (c) the exterior of the Building, or
(d) the premises of any other tenant or occupant (including Landlord) of the
Building.
3.4 Approved Working Drawings. Tenant shall not commence any work on the
Premises until the Final Working Drawings have been approved by Landlord (the
"APPROVED WORKING DRAWINGS"). After approval by Landlord of the Final Working
Drawings, Tenant shall promptly submit the same to the appropriate governmental
authorities for all applicable building permits. Tenant acknowledges and agrees
that Landlord shall not be responsible for obtaining any building permit or
certificate of occupancy for the Premises and that obtaining the same shall be
Tenant's sole responsibility; provided, however, that Landlord shall reasonably
cooperate with Tenant in executing permit applications and performing other
ministerial acts required by Law for Tenant to obtain any such permit or
certificate of occupancy, provided that such cooperation is at no cost to
Landlord and does not subject Landlord to any obligation or liability. No
material changes, modifications or alterations in the Approved Working Drawings
may be made without the prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed, except that Landlord may withhold its
consent in Landlord's sole and absolute discretion with respect to any change,
modification or alteration that is inconsistent with the Final Space Plan or
that may affect (a) the structural elements or components of the Building, or
(b) any mechanical (including HVAC), electrical, plumbing, life safety, or
sprinkler systems in or serving the Premises or any other part of the Building,
(c) the exterior of the Building, or (d) the premises of any other tenant or
occupant (including Landlord) of the Building. Tenant shall promptly provide
Landlord with any change, modification or alteration in the Approved Working
Drawings that Tenant considers to be immaterial.
3.5 Notices. Notices given by one party to the other under or pursuant to
this Tenant Work Letter shall be given in accordance with Paragraph 13.10 of the
Lease and shall be deemed given and received in accordance with Paragraph 13.10
of the Lease.
SECTION 4
CONSTRUCTION OF THE TENANT IMPROVEMENTS
4.1 Tenant's Selection of Contractor and Tenant's Agents.
4.1.1 The Contractor. A qualified and duly licensed general contractor
shall be retained by Tenant to construct the Tenant Improvements. Such general
contractor ("Contractor") shall be reasonably acceptable to Landlord.
4.1.2 Tenant's Agents. All contractors (including, without limitation,
the Contractor) and subcontractors of or used by Tenant in connection with the
Tenant Improvements must be approved in advance in writing by Landlord, which
approval shall not be unreasonably withheld or delayed; provided however, that
Tenant may use any of the subcontractors listed on Schedule 1 hereto. In any
event, all subcontractors proposed by Tenant must be reasonably experienced in
performance of comparable subtrade work in tenant improvement projects in
comparable buildings in Atlanta, Georgia. Tenant's
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employees, agents, contractors (including, without limitation, the Contractor),
subcontractors, materialmen, laborers, vendors and suppliers, and the
subcontractors, materialmen, laborers, vendors and suppliers of the Contractor
and its subcontractors, are collectively referred to herein as "Tenant's
Agents".
4.1.3 No Duty. Landlord neither undertakes, nor assumes any duty to
Tenant or anyone else, to select, review, inspect, supervise, or inform Tenant
or anyone else of the quality, adequacy or suitability of any architects,
contractors, subcontractors, or materialmen (including, without limitation,
Tenant's Agents) employed or utilized in connection with the design,
construction, installation or any other aspect of the Tenant Improvements.
Tenant acknowledges that it shall rely entirely upon its own investigation,
evaluation, supervision and inspection in determining each and all of the
foregoing.
4.2 Construction of Tenant Improvements by Tenant's Agents.
4.2.1 Construction Contract; Construction Budget. Prior to Tenant's
execution of the construction contract and general conditions with Contractor
(the "CONTRACT"), Tenant shall submit a true and complete copy of the Contract
to Landlord. Prior to commencement of the construction of the Tenant
Improvements, and after Tenant has accepted all bids for the Tenant
Improvements, Tenant shall provide Landlord with a copy of Tenant's project
budget for the Tenant Improvements (the "CONSTRUCTION BUDGET"), containing the
costs projected to be incurred to complete the design, construction and
installation of the Tenant Improvements, or the costs which have been incurred,
as set forth more particularly in Sections 2.2.1.1 through 2.2.1.7 above, in
connection with the design, construction and installation of the Tenant
Improvements.
4.2.2 Tenant's Agents.
4.2.2.1 Landlord's General Conditions for Tenant's Agents and
Tenant Improvement Work. Tenant shall ensure that: (i) the Tenant Improvements
are constructed in strict accordance with the Approved Working Drawings and
applicable Laws; (ii) Tenant and Tenant's Agents do not materially interfere
with, obstruct, or delay, in Landlord's judgment, any work being performed in
the Building or on the Property; (iii) [intentionally omitted]; (iv) dust, noise
and all other effects of the activities and work being performed by Tenant or
Tenant's Agents in the Premises shall be controlled using the best accepted
methods to control such adverse effects in occupied multi-tenant buildings; (v)
only new and first class materials are used or incorporated in the Tenant
Improvements; (vi) Tenant's Agents do not post any signs in the Building or on
the Property without Landlord's prior written consent (and Landlord shall have
sole discretion as to the posting, size and location of any such signs); and
(vii) any damage to the Premises, Building or Property caused by Tenant or any
of Tenant's Agents is promptly repaired, replaced and restored, as applicable.
Tenant shall abide by all rules and regulations made by Landlord in its
reasonable judgment with respect to the use of loading docks, freight and
service elevators, storage of materials, staging, parking, loading and
unloading, and/or the coordination of work with the contractors and
subcontractors of other tenants or of Landlord. In the construction and
installation of the Tenant Improvements, and at all times while in the Building,
Tenant and Tenant's Agents shall comply with all applicable Laws (including,
without limitation, the Occupational Safety and Health Act (OSHA) and all other
applicable safety regulations), and they shall make adequate provision for the
safety and convenience of all persons affected by their activities and work. Any
delays in the completion of the Tenant Improvements and/or Tenant's lawful use
or occupancy of the Premises shall be at the sole risk and expense of Tenant,
and shall in no event delay or extend the applicable Rent Commencement Date,
unless such delay is due to (a) Landlord's failure to respond to any item
submitted to Landlord by Tenant for Landlord's approval or consent as required
under this Tenant Work Letter within the time frame specified in this Tenant
Work Letter for Landlord to deliver its response, or (b) the willful misconduct
of Landlord, in which case the Rent Commencement Date for the affected Phase of
the Premises shall be extended by one (1) day for each day that Tenant is
actually delayed beyond the end of the Projected Construction Period (as defined
below) in the completion of the Tenant Improvements for such Phase as a result
of any such cause. As used herein, the "Projected Construction Period" for the
First Phase Premises is the period of time (commencing on the date the
Contractor has obtained a building permit for the First Phase Tenant
Improvements and actually commences construction thereof)
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that the Contractor can reasonably be expected to complete (including all
punch-list items) the First Phase Tenant Improvements in accordance with the
Contract taking into account changes in the work and Force Majeure delays that
occur. As used herein, the "Projected Construction Period" for the Second Phase
Premises is the period of time (commencing on the date Tenant's Contractor has
obtained a building permit for the Second Phase Tenant Improvements and actually
commences construction thereof) that the Contractor can reasonably be expected
to complete (including all punch list items) the Second Phase Tenant
Improvements in accordance with the Contract taking into account changes in the
work and Force Majeure delays that occur. Under no circumstances shall the
Projected Construction Period for the First Phase Premises be deemed to conclude
before the ninetieth (90th) day following the date Landlord tenders possession
of the First Phase Premises to Tenant. Under no circumstances shall the
Projected Construction Period for the Second Phase Premises be deemed to
conclude before the ninetieth (90th) day following the date Landlord tenders
possession of the Second Phase Premises to Tenant.
4.2.2.2 Indemnity. Without limiting the scope or generality of
Tenant's indemnities of Landlord as set forth in the Lease, said indemnities
shall also apply with respect to any and all Adverse Consequences suffered or
incurred by Landlord (a) to the extent caused by any act or omission of Tenant
or any of Tenant's Agents, or anyone directly or indirectly employed by any of
them, or Tenant's non-payment of any amount due from Tenant in connection with
the design or construction of the Tenant Improvements, or (b) arising out of the
performance by Landlord of any ministerial acts as may be performed by Landlord
to permit Tenant to complete the Tenant Improvements or to enable Tenant to
obtain any building permit or certificate of occupancy with respect to the
Tenant Improvements or Premises. The provisions of this Section 4.2.2.2 shall
survive the expiration or sooner termination of the Lease.
4.2.2.2 Requirements of Tenant's Agents. The Contractor and each
subcontractor shall guarantee to Tenant and for the benefit of Landlord that the
portion of the Tenant Improvements for which it is responsible shall be free
from any defects in workmanship and materials for a period of not less than one
(1) year from the date of completion thereof. The Contractor and each
subcontractor shall be responsible for the replacement or repair, without
additional charge, of all work done or furnished in accordance with its contract
that shall become defective within one (1) year after the completion of the work
performed by such Contractor or subcontractors. The correction of such work
shall include, without additional charge, all additional expenses and damages
incurred in connection with such removal or replacement of all or any part of
the Tenant Improvements, Building and/or Common Areas that may be damaged or
disturbed thereby. All such warranties or guarantees as to materials or
workmanship of or with respect to the Tenant Improvements shall be contained in
the Contract or applicable subcontract, as the case may be, and shall be written
such that such guarantees or warranties shall inure to the benefit of both
Landlord and Tenant, as their respective interests may appear, and can be
directly enforced by either. Tenant covenants to give to Landlord any assignment
or other assurances which may be necessary to effect such right of direct
enforcement.
4.2.2.3 Insurance Requirements.
4.2.2.3.1 General Coverages. All of Tenant's Agents shall
carry worker's compensation insurance covering all of their respective employees
in form and with coverage limits as required by Law. Tenant's Contractor shall
also carry commercial general liability insurance, including property damage, in
form and with companies as are required to be carried by Tenant under the Lease.
All other Tenant's Agents shall also carry commercial general liability
insurance, including property damage, with commercially reasonable limits.
4.2.2.3.2 Special Coverages. Tenant shall carry "Builder's
All Risk" insurance in an amount reasonably approved by Landlord (but in no
event less than the estimated cost of the Tenant Improvements), covering the
construction of the Tenant Improvements, it being understood and agreed that the
Tenant Improvements shall be insured by Tenant pursuant to the Lease immediately
upon completion thereof. Such insurance shall be in form and with companies as
are required to be carried by Tenant as set forth in the Lease.
8
4.2.2.3.3 General Terms. Certificates for all insurance
required to be carried pursuant to this Section 4.2.2.3 shall be delivered to
Landlord before the commencement of construction of the Tenant Improvements and
before the Contractor's equipment is moved onto the Property. All such policies
of insurance must contain a provision that the company writing said policy will
give Landlord at least thirty (30) days prior written notice of any cancellation
or lapse of the effective date or reduction in coverage. If the Tenant
Improvements are damaged by any cause during the course of construction thereof,
Tenant shall, at its sole expense, diligently repair and restore the Tenant
Improvements whether or not there exist insurance proceeds to fund such work.
All policies required to be carried under this Section 4.2.2.3 (except for
"Builder's All Risk" insurance) shall name as additional insureds Landlord, its
property manager (if any), all Lenders, and any other party reasonably requested
by Landlord. All insurance (except workers' compensation) maintained by Tenant's
Agents shall preclude subrogation claims by the insurer against anyone insured
thereunder. Such insurance shall provide that it is primary insurance as
respects Landlord and that any other insurance maintained by Landlord is excess
and noncontributing with the insurance required hereunder. The requirements for
the foregoing insurance shall not derogate from the provisions for
indemnification of Landlord by Tenant under Section 4.2.2.3 of this Tenant Work
Letter.
4.2.3 Construction Standards; Permits, Certificates and Bonds. Tenant
shall cause the Tenant Improvements and Tenant's trade fixtures and utility
installations to be constructed and installed diligently and in a good and
workmanlike manner and in compliance with all codes, ordinances and other
applicable Laws (including, without limitation, the Americans with Disabilities
Act), the requirements of Landlord's insurance carriers or rating organizations,
and the specifications of all applicable building materials manufacturers. (And,
in those instances where several different standards are applicable, the
strictest standard shall apply, unless otherwise agreed to in writing by
Landlord.) Tenant shall obtain, at its sole expense, all permits, certificates,
licenses, and approvals necessary to lawfully construct and install the Tenant
Improvements and Tenant's trade fixtures and utility installations in the
Premises, and Tenant shall furnish Landlord with copies of all such permits,
certificates, licenses, and approvals prior to the commencement of any
construction or other work on the Premises.
4.2.4 Inspection by Landlord. Landlord shall have the right to inspect
the Tenant Improvements and/or Premises at all reasonable times upon reasonable
advance notice to Tenant, provided however, that Landlord's failure to inspect
the Tenant Improvements and/or Premises shall in no event constitute a waiver of
any of Landlord's rights hereunder nor shall Landlord's inspection of the Tenant
Improvements or any part thereof constitute Landlord's approval of the same;
provided, however, that Landlord's right to inspect shall not include the right
to open walls or perform other deconstruction of improvements or equipment
already in place unless Landlord agrees to do so at its sole expense. Should
Landlord disapprove any portion of the Tenant Improvements, Landlord shall
notify Tenant in writing of such disapproval and shall specify the items
disapproved. Any defects or deviations in, or disapproval by Landlord of, the
Tenant Improvements shall be rectified by Tenant at no expense to Landlord;
provided however, if such defect or deviation might adversely affect the
mechanical, electrical, plumbing, heating, ventilating and air conditioning or
life-safety systems of the Building, the structure or exterior appearance of the
Building or Landlord's use of those portions of the Building being occupied by
Landlord, Landlord may (but shall not be required to) take such action as
Landlord deems necessary, at Tenant's expense and without incurring any
liability on Landlord's part, to correct any such defect or deviation including,
without limitation, causing the cessation of performance of the construction of
the Tenant Improvements until such time as the defect or deviation is corrected
to Landlord's reasonable satisfaction. Tenant shall reimburse Landlord within
fifteen (15) days after receipt of Landlord's invoice or statement, as
Additional Rent under the Lease, for any costs incurred by Landlord to correct
any such defect or deviation. Failure by Landlord to review or inspect the
Tenant Improvements or any part thereof shall not constitute a waiver of any of
Landlord's rights under this Tenant Work Letter or the Lease. Review or
inspection not followed by notice of default shall not constitute a waiver of
any default or breach then existing.
Tenant acknowledges and agrees that any review or inspection of the
Tenant Improvements, Premises, or any part thereof that is undertaken by or on
behalf of Landlord or its agents is entirely for Landlord's own internal
purposes and is not for the purpose of determining for, or informing Tenant or
anyone else of, the quality, suitability, compliance with the Approved Plans, or
compliance with
9
applicable Laws, of any construction, work, or materials incorporated in or
associated with the Tenant Improvements or the Premises. Tenant acknowledges
that it shall rely entirely upon its own investigation, evaluation, supervision
and inspection in determining each and all of the foregoing.
Tenant further acknowledges and agrees that Landlord owes no duty of
care to protect Tenant, Tenant's Contractor, any other Tenant's Agent, or anyone
else against any negligent, faulty, inadequate or defective work, construction
or materials associated with the Tenant Improvements or Tenant's trade fixtures
or utility installations or any other alterations, fixtures or installations
made by or on behalf of Tenant, or for any loss or damage of any kind to person
or property associated with the Tenant Improvements or Tenant's trade fixtures
or utility installations or any other alterations, fixtures or installations
made by or on behalf of Tenant.
4.2.5 Meetings. Commencing on the start of construction, Tenant shall
hold regular, periodic meetings at reasonable times with the Design
Professionals and Contractor regarding the progress of the preparation of
Construction Drawings and the construction of the Tenant Improvements, which
meetings shall be held at the Premises or such other location mutually approved
by Landlord and Tenant, and Landlord and/or its agents or other representatives
shall have the right to attend all such meetings. Tenant shall provide
Landlord's Representative (defined below) with reasonable prior written notice
of all such meetings. One such meeting each month shall include the review of
Contractor's current request for payment.
4.3 Notice of Completion; Copy of "As Built" Drawings. Within ten (10) days
after completion of construction of the Tenant Improvements for each Phase of
the Premises, Tenant shall cause a notice of completion, or such similar
document as may be authorized under applicable Law, to be recorded in the office
of the Recorder of the County in which the Building is located in accordance
with applicable Law in the State of Georgia and shall furnish a copy thereof to
Landlord upon such recordation. If Tenant fails to do so, Landlord may execute
and file the same on behalf of Tenant as Tenant's agent for such purpose, at
Tenant's sole cost and expense. Within sixty (60) days following completion of
construction of the Tenant Improvements for each Phase of the Premises, (i)
Tenant shall cause the Design Professionals and Contractor (A) to update the
Approved Working Drawings for such Phase as necessary to reflect all changes
made to such Approved Working Drawings during the course of construction so that
they qualify as as-built drawings, (B) to certify to their actual knowledge that
the "record-set" of such as-built drawings for such Phase is true and correct,
(C) to deliver to Landlord two (2) sets of sepias of such as-built drawings, and
(D) to deliver to Landlord a computer disk containing such as-built drawings in
AutoCAD format, and (ii) Tenant shall deliver to Landlord a copy of all
warranties, guaranties, and operating manuals and information in Tenant's or any
Tenant's Agent's possession relating to such Tenant Improvements or any part
thereof.
4.4 Coordination by Tenant's Agents with Landlord. Upon Tenant's delivery
of the Contract to Landlord under Section 4.2.1 of this Tenant Work Letter,
Tenant shall furnish Landlord with a schedule setting forth the projected date
of the completion of the Tenant Improvements and showing the critical time
deadlines for each phase or major trade relating to the construction of the
Tenant Improvements.
SECTION 5
MISCELLANEOUS
5.1 Time of the Essence in This Tenant Work Letter. Unless otherwise
indicated, all references herein to a "number of days" shall mean and refer to
calendar days. If any item requiring approval is timely disapproved by Landlord,
the procedure for preparation of the document and approval thereof shall be
repeated until the document is approved by Landlord.
5.2 Tenant's Lease Default. Notwithstanding any provision to the contrary
contained in the Lease, if at any time before completion of the Tenant
Improvements Tenant defaults in the performance of any of its obligations under
this Tenant Work Letter or an Event of Default occurs under the Lease, then (i)
in addition to all other rights and remedies granted to Landlord pursuant to the
Lease, at law
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and/or in equity, Landlord shall have the right to withhold payment of all or
any portion of the Tenant Improvement Allowance and/or Landlord may cause
Contractor to cease the construction of the Tenant Improvements (in which case,
Tenant shall be responsible for any delay in the completion of the Tenant
Improvements caused by such work stoppage), and (ii) all obligations of Landlord
under the terms of this Tenant Work Letter shall be forgiven until such time as
such default is cured pursuant to the terms of the Lease (in which case, Tenant
shall be responsible for any delay in the completion of the Premises caused by
such inaction by Landlord). In addition, if the Lease is terminated prior to the
Rent Commencement Date as a result of an Event of Default under the Lease or
Tenant's default under this Tenant Work Letter, in addition to any other
remedies available to Landlord under the Lease, at law and/or in equity, Tenant
shall pay to Landlord, as Additional Rent under the Lease, within five (5) days
of receipt of a statement therefor, any and all costs (if any) incurred by
Landlord (including any portion of the Tenant Improvement Allowance disbursed by
Landlord) and not reimbursed or otherwise paid by Tenant through the date of
such termination in connection with the Tenant Improvements to the extent
planned, installed and/or constructed as of such date of termination, including,
but not limited to, any costs related to the removal of all or any portion of
the Tenant Improvements and restoration costs related thereto.
5.3 Minimization of Interference. All work performed by or on behalf of
Tenant, Tenant's Contractor, or any other Tenant's Agent shall be performed so
as to cause a minimum of interference with the tenants, occupants or users of
the Building (including without limitation, Landlord) and the owners, tenants,
occupants, or users of any neighboring properties. Tenant shall take all
precautionary steps reasonably necessary to protect its property, equipment and
facilities and the property, equipment and facilities of others affected by any
of the work or activities to be performed by or on behalf of Tenant or Tenant's
Agents under this Tenant Work Letter and shall make reasonably adequate
provision for the safety and convenience of the tenants, occupants or users of
the Building (including without limitation, Landlord) and the owners, tenants,
occupants, or users of any neighboring properties. Landlord shall designate one
entrance into the Building and one elevator that may be used by Tenant, Tenant's
Contractor and any other Tenant's Agents for access to the Premises during the
construction of the Tenant Improvements hereunder, and until the completion of
the Tenant Improvements as herein set forth neither Tenant, Tenant's Contractor
nor any other Tenant's Agent shall (a) use any other entrance into the Building
or any other elevator; (b) display identification or other signage anywhere in
or on the Building or otherwise on the Property; (c) use any cafeteria located
in the Building; (d) store for any period of time any equipment, materials,
tools or supplies anywhere other than within the Premises; or (e) park or load
or unload vehicles anywhere in the parking structure serving the Building (the
"Parking Structure") or at any other location within the Property, except such
parking area or areas in the Parking Structure designated in writing by
Landlord. Tenant shall not store (or permit any of Tenant's Agents to store) in
the Premises any equipment, materials, tools or supplies unless (i) such storage
complies with all applicable Law (including, without limitation, OSHA), the
Private Restrictions, the requirements of Landlord's insurers, the rules and
regulations prescribed by Landlord, and the load limits for the floor on which
the storage occurs, and (ii) the equipment, materials, tools or supplies are not
toxic, combustible, flammable or otherwise dangerous and do not create a fire or
other hazard.
[Signatures to follow on the next page]
11
LANDLORD: HEWLETT-PACKARD COMPANY, a Delaware
corporation
By: /s/ X.X. X'Xxxxx
------------------------------------
Print Name: Xxxxxxx X'Xxxxx
----------------------------
Its: R.E. Mgr.
-----------------------------------
Date: 7/27/06
----------------------------------
TENANT: XXXXXXXX & COMPANY, a Georgia
corporation
By: /s/ X.X. Xxxxx
------------------------------------
Print Name: Xxxxx Xxxxx
----------------------------
Its: SVP - Controller and Interim CFO
-----------------------------------
Date: 6/22/06
----------------------------------
By: /s/ R.E. Powers III
------------------------------------
Print Name: R. Xxxx Xxxxxx III
----------------------------
Its: Assistant Corporate Secretary
-----------------------------------
Date: 6/22/06
----------------------------------
12
Schedule 1
Mechanical/HVAC
McKenney's Mechanical Contractors & Engineers
0000 Xxxxxxxx Xxxxxxxxxx Xxxx. XX
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxx (000)000-0000
Xxxxxxx Controls Inc.
00000 Xxxxx Xxxxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx (000)000-0000
HVAC Controls
Siemens Building Technologies, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxx (000)000-0000 x 0000
Electrical
Xxxxxxx & Xxxxxx Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxx XxXxxxxxx (000)000-0000
Fire Sprinkler
Simplex-Xxxxxxxx Fire Protection
0000 Xxxx Xxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx (000)000-0000
Fire Alarm
Xxxxxxx Systems Technology
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx (000)000-0000 x00
Phone & Data Communications
Black Box Network Services
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxx (000)000-0000
Raised Floor
Xxxxxx X. Xxxxxxxxxx, Inc.
0000 Xxxxxxx Xxxx XX
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxx (000)000-0000
Carpet
Re: Source Georgia
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxx Xxxx (000)000-0000 x0000
13
Xxxxxx Contract Floors
0000 Xxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxx (000)000-0000
Security & Access Control
Operational Security Systems
0000-X Xxxxxxx Xx. XX
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxx (000)000-0000
Keys & Locks
Metro Lock Service
0000 Xxxxxxxxxx Xx.
Xxxxx 0 Xxxxxxx, XX 00000
Attn: Xxxxx Xxxx (000)000-0000
14
EXHIBIT "E"
PARKING LICENSE
THIS PARKING LICENSE (this "License Agreement") is made this _____ day of
____________, 2006 in Atlanta, Georgia.
BETWEEN: Hewlett-Packard Company
(hereinafter called the "Licensor")
OF THE FIRST PART,
-- and -- Xxxxxxxx & Company
(hereinafter called "Licensee")
OF THE SECOND PART.
WHEREAS by lease (the "Lease") dated _________, 2006, Licensee leased from
Licensor certain premises on the 2nd, 0xx, 0xx, 0xx, 0xx, 0xx and 10th floors in
the building located at 00 Xxxxxxxxx Xxxxxx Xxxxxxxxx, X.X., Xxxxxxx, Xxxxxxx
(the "Building") and in connection therewith wishes to park automobile(s) in the
parking structure serving the Building (the "Parking Structure");
NOW THEREFORE, in consideration of TEN ($10.00) DOLLARS now paid by
Licensee to Licensor, the parties hereto agree as follows:
1. Licensor hereby grants to Licensee the right to use four (4) parking passes
per 1,000 rentable square feet within the Premises, twenty (20) of which
shall be reserved parking passes (with eight (8) of the reserved parking
passes to be used exclusively for Licensee's fleet parking) and the
remainder of which shall be unreserved parking passes, for a term
commencing on the date Licensor tenders possession of the First Phase
Premises to Licensee pursuant to the Lease and ending on the Lease
Expiration Date; provided, however if the Lease is terminated with respect
to the Second Phase Premises pursuant to Section 2.1(C) of the Lease,
Licensee shall only have the right to use four (4) parking passes per 1,000
rentable square feet within the First Phase Premises, its right to use
parking passes in excess of that ratio shall immediately terminate, and
Licensee shall immediately return all parking passes corresponding to the
rentable square footage of the Second Phase Premises. The parking passes
issued to Licensee under this paragraph pertain to unreserved and reserved
parking spaces located in the Parking Structure as such spaces are
designated by Licensor from time to time; provided, however, that Licensor
will initially locate the reserved parking spaces (associated with the
reserved parking passes granted to Licensee above) in the locations
designated on Schedule 1 to this License. The reserved parking spaces will
be designated by signage or other indicators.
In addition to the above grant, Licensor hereby grants to Licensee the
right to use one hundred (100) additional unreserved parking passes until
such time as Licensor shall elect, in its sole and absolute discretion upon
not less than thirty (30) days prior written notice to Licensee, to revoke
such license. In consideration of such revocable license and as a condition
thereto, Licensee shall pay Licensor $66.66 per day for each day such
license remains in effect, which charge shall be paid to Licensor in
advance, without offset or demand, in monthly installments of $2,000, on
the first (1st) day of each calendar month during the period such license
remains in effect. Licensee's obligation to pay said parking charge shall
be appropriately prorated at the commencement and termination of the
license granted in this paragraph. The parking charge shall be considered
Additional Rent under the Lease and the failure by Licensee to pay such
parking charge as and when required above shall give Licensor the same
rights and remedies as are available to Licensor under the Lease for
Licensee's failure to pay Additional Rent when due. The parking passes
issued to Licensee under this paragraph pertain to unreserved parking
-1-
spaces located in the Parking Structure as such spaces are designated by
Licensor from time to time.
Licensee's right to use the parking passes is conditioned upon Licensee
abiding by all reasonable rules and regulations which are prescribed by
Licensor from time to time for the orderly operation and use of the Parking
Structure (the "Parking Rules"), and Licensee shall cooperate with Licensor
in seeing that Licensee's employees, contractors and visitors also comply
with such rules and regulations. In the event of a conflict between the
Parking Rules, this License or the Lease, such conflicts shall be resolved
as follows: this License shall govern over the Parking Rules, and the Lease
shall govern over this License and the Parking Rules.
2. The license granted to Licensee in first paragraph of Section 1 of this
License Agreement shall terminate automatically and without notice upon the
expiration or sooner termination of the Lease, but otherwise may not be
revoked by Licensor. The license granted to Licensee in the second
paragraph of Section 1 of this License Agreement is fully revocable by
Licensor in its sole abd absolute discretion and shall terminate on the
thirtieth (30th) day after Licensor's delivery of written notice to
Licensee of Licensor's election to revoke such license.
3. Licensor may assign any parking spaces, make all or a portion of such
spaces reserved, and/or institute an attendant assisted tandem parking
program and/or valet parking program if Licensor determines in its sole
discretion that such is necessary or desirable for orderly and efficient
parking. Licensor specifically reserves the right, from time to time, to
change the size, configuration, design, layout, location and all other
aspects of the Parking Structure (including, but not limited to, the
location of Licensee's parking passes); provided that the location of
Licensee's reserved spaces shall be in a comparably convenient and
accessible location as their initial location and, subject to the other
provisions of this License Agreement, Licensor agrees not to voluntarily
reduce the number of parking passes issued to Licensee under this License
Agreement below a ratio of four (4) per 1,000 rentable square feet of the
Premises leased by Licensee pursuant to the Lease except as may be required
by Law or in the event of any casualty, condemnation or Force Majeure event
that results in the loss of parking area within the Parking Structure.
Furthermore, Licensee acknowledges and agrees that Licensor, from time to
time, may, without incurring any liability to Licensee and without any
abatement of Rent under this Lease, temporarily close-off or restrict
access to the Parking Structure, or temporarily relocate Licensee's parking
spaces to other parking structures and/or surface parking areas within a
reasonable distance from the Building, for purposes of permitting or
facilitating renovation, alteration, construction or other modification of
the Parking Structure or any other improvements or structures located on
the Property. Licensor may delegate its responsibilities hereunder to a
parking operator in which case such parking operator shall have all the
rights of control attributed hereby to Licensor. The parking passes
provided to Licensee pursuant to this License Agreement are provided solely
for use by the personnel of Licensee or of any Permitted Assignee, and such
passes may not be transferred, assigned, sublicensed, or otherwise
alienated by Licensee without Licensor's prior written approval, which may
be withheld by Licensor in its sole and absolute discretion. As used
herein, a "Permitted Assignee" shall mean an assignee of Licensee's
interest in the Lease pursuant to an assignment complying with the terms of
Article 7 of the Lease.
4. Neither Licensor nor any Licensor Party shall be liable for any loss, harm,
injury or damage caused to Persons (including, without limitation,
Licensee's agents, employees, licensees, visitors and other invitees) using
the Parking Structure or to automobiles or their contents or any other
property thereon, except to the extent caused solely by Licensor's sole,
active gross negligence or willful misconduct, and Licensee agrees that,
except as set forth immediately above, such Persons, vehicles, contents and
property shall be in the Parking Structure at the sole risk of Licensee and
such Persons.
-2-
5. Licensee shall not assign (except to a Permitted Assignee), sublicense or
otherwise transfer any of the parking rights licensed to Licensee hereunder
without the prior consent in writing of Licensor, which consent may be
withheld by Licensor in its sole and absolute discretion.
6. It is acknowledged that any parking passes, card or keys (if any) provided
to Licensee pursuant to this License Agreement are the property of Licensor
and, in the case of the passes issued pursuant to the first paragraph of
Section 1 of this License Agreement, shall be returned to Licensor upon the
expiration or sooner termination of this License Agreement, and in the case
of the passes issued pursuant to the second paragraph of Section 1 of this
License Agreement shall be returned to Licensor upon the revocation of the
license granted in said paragraph. Inoperative passes, cards or keys will
be replaced at no charge, but lost cards or keys will be replaced at a
commercially reasonable cost established by Licensor from time to time.
7. Nothing in this License Agreement shall relieve Licensee from any of its
obligations under the Lease. In the event of any conflict between any term
or provision of this License Agreement and any term or provision of the
Lease, the term or provision of the Lease shall govern and prevail.
Unless otherwise expressly defined in this License Agreement, all initially
capitalized terms used herein shall have the meanings ascribed to them in the
Lease.
IN WITNESS WHEREOF the parties hereto have executed this License Agreement
on the day and year first set forth above.
LICENSEE LICENSOR
XXXXXXXX & COMPANY, a Xxxxxxx XXXXXXX-XXXXXXX COMPANY, a Delaware
corporation corporation
By: /s/ X.X. Xxxxx By: /s/ X.X. X'Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxx X'Xxxxx
------------------------------- -----------------------------
Title: SVP-Controller and Interim CFO Title: R.E. Mgr.
------------------------------ -----------------------------
-3-
EXHIBIT "F"
RULES AND REGULATIONS
1. The sidewalks, entry passages, elevators (if installed in the Building)
and common stairways shall not be obstructed by Tenant or any agent, employee,
servants, contractor, subcontractor, guest, visitor, licensee, invitee,
sublessee, successor or assign of Tenant (each a "Tenant Party"; collectively,
"Tenant Parties") or used for any other purpose than for ingress and egress to
and from the Premises. Tenant will not place, or permit any Tenant Party to
place, in the Building corridors or public stairways any waste paper, dust,
garbage, trash, refuse or other thing.
2. Tenant shall not use, or permit any Tenant Party to use, the washroom
plumbing fixtures and other water apparatus for any purpose other than those for
which they were constructed, and no sweepings, rubbish, rags, ashes or other
substances shall be thrown therein. The expense of any damage resulting by
misuse by Tenant or any Tenant Party shall be borne by Tenant.
3. Tenant shall permit window cleaners to clean, during Normal Business
Hours: (a) the exterior surfaces of the windows of the Premises, and (b) subject
to the provisions of Section 4.9 of the Lease, the interior surfaces of the
windows of the Premises.
4. No birds or animals (other than seeing eye-dogs) shall be kept in or
about the Property by Tenant nor shall Tenant operate or permit to be operated
any musical or sound-producing instruments or device or make (or, inside the
Premises only, permit to be made) any noise inside or outside the Premises which
may be heard outside the Premises, except as permitted under Section 4.3 of the
Lease.
5. Tenant shall not permit the use of the Premises for residential
purposes, or for the storage of personal effects or articles other than those
required for business purposes.
6. All persons entering and leaving the Building at any time other than
during Normal Business Hours shall register in the books which may be kept by
Licensor at or near the night entrance and Landlord will have the right to
prevent any Person from entering the Building or the Property unless provided
with a key or access card to the premises to which such Person seeks entrance
and a pass in a form to be approved by Landlord. Any persons found in the
Building at such times without such keys and passes will be subject to the
surveillance of the employees and agents of Landlord.
7. Tenant shall not keep or permit to be kept any dangerous or explosive
materials in the Premises.
8. No space heating devices of any kind shall be kept or used in the
Premises.
9. Tenant shall not xxxx in the Premises except for the use of coffee
makers and food warmed up in microwaves for consumption by employees or guests
of Tenant, and Tenant shall ensure that odors do not emanate from the Premises.
Tenant shall not install or permit the installation or use of any machine
dispensing goods for sale in the Premises without the prior written approval of
Landlord except for vending machines provided by Tenant for the use of its
employees.
10. Tenant shall not bring in or take out, position, construct, install or
move any safe, business machine or other heavy office equipment without first
coordinating the same with Landlord. All damage done to the Building by Tenant's
moving or using any such heavy equipment or other office equipment or furniture
shall be repaired at the sole expense of Tenant. The moving of all heavy
equipment or other office equipment or furniture shall occur only at times
consented to by Landlord and the persons employed to move the same in and out of
the Building must be reasonably acceptable to Landlord. Safes and other heavy
office equipment will be moved through the halls and corridors only
-1-
upon steel bearing plates. No freight or bulky matter of any description will be
received into the Building or carried in the elevators (if installed in the
Building) except during hours approved by Landlord.
11. Tenant shall give Landlord prompt notice of any accident to or any
defect in the plumbing, heating, air-conditioning, ventilating, mechanical or
electrical apparatus or any other part of the Building of which Tenant obtains
actual knowledge.
12. The parking of automobiles shall be subject to the reasonable
regulations of Landlord, which regulations shall be delivered to Tenant in
writing. Landlord shall not be responsible for damage to or theft of any car,
its accessories or contents unless caused by the sole, affirmative gross
negligence or willful misconduct of Landlord.
13. Tenant shall not xxxx, drill into or in any way deface the walls,
ceilings, partitions, floors or other parts of the Premises or Building, except
for the installation of decorative wall hangings in the Premises and except for
alterations to the Premises permitted under the terms of Tenant's Lease and
installed in accordance with the terms of Tenant's Lease.
14. Except with the prior written consent of Landlord (which consent shall
not be unreasonably withheld, conditioned or delayed with respect to "touch-up
cleaning" undertaken by Tenant during Normal Business Hours only), Tenant shall
not use or engage any Person or Persons other than the janitor or janitorial
contractor of Landlord for the purpose of any regular cleaning of the Premises;
provided that the foregoing shall not result in any reduction of Property
Operating Expenses payable by Tenant under the Lease.
15. If Tenant desires any electrical or communications wiring, Landlord
reserves the right to direct qualified persons as to where and how the wires are
to be introduced (provided, however, that such direction shall be commercially
reasonable), and without such directions no borings or cutting for wires shall
take place. No other wires or pipes of any kind shall be introduced without the
prior written consent of Landlord.
16. Subject to the provisions of Section 6.1 of the Lease, Tenant shall not
place or cause to be placed any additional locks upon any doors of the Premises
without the approval of Landlord and subject to any commercially reasonable
conditions imposed by Landlord. Landlord shall not unreasonably withhold its
approval of such additional locks, provided that Tenant shall provide Landlord
with duplicate keys to any such additional lock installed by Tenant after
Landlord has granted its approval. Additional keys may be obtained from Landlord
at the cost of Tenant.
17. Tenant shall be entitled to have its name shown upon a directory board
in the Building as provided in the Lease,
18. Tenant shall keep window coverings (if any) in a partially closed or
closed position as necessary for reasonable temperature control. Tenant shall
not unreasonably interfere with or obstruct any perimeter heating,
air-conditioning or ventilating units.
19. Tenant shall not conduct (or permit any Tenant Party) any canvassing in
the Building.
20. Tenant shall take reasonable care of the rugs and drapes (if any) in
the Premises and shall arrange for the carrying-out of regular spot cleaning and
shampooing of carpets and dry cleaning of drapes (which are visible from the
exterior of the Premises) in a manner reasonably acceptable to Landlord.
21. Landlord may periodically close lanes, driveways and passages for the
purpose of preserving Landlord's rights over such lanes, driveways and passages.
To the extent reasonably practicable under the circumstances and permitted by
Law and the Private Restrictions, Landlord will
-2-
implement such closures at such times as Landlord believes will minimize the
amount of interference with Tenant's access to the Building.
22. Subject to any signage rights that may exist under Tenant's Lease,
Tenant shall not place any sign, advertisement, notice or other display on any
part of the exterior of the Premises or elsewhere if such sign, advertisement,
notice or other display is visible from outside the Premises without the prior
written consent of Landlord, which consent may be arbitrarily withheld by
Landlord. Subject to any signage rights that may exist under Tenant's Lease,
Tenant, upon request of Landlord, shall promptly remove any sign, advertisement,
notice or other display which Tenant has placed or permitted to be placed which,
in the reasonable opinion of Landlord, is objectionable, and if Tenant shall
fail to do so, Landlord may remove the same at the expense of Tenant.
23. Landlord shall have the right to make such other and further reasonable
rules and regulations and to modify the same as in its judgment may from time to
time be needful for the safety, care, cleanliness and appearance of the Premises
or Property and for the preservation of good order therein, and the same shall
be kept and observed by Tenant and each Tenant Party. Landlord also has the
right to suspend or cancel any or all of the rules and regulations herein set
out or hereafter established. In the event of a conflict between the terms and
conditions of the rules and regulations (including without limitation any
subsequent modifications thereto) and the terms of the Lease, the terms of the
Lease shall govern.
-3-
EXHIBIT "G"
JANITORIAL SPECIFICATIONS
I. OFFICES AND CORRIDORS - (Includes private offices, general office space,
conference rooms and kitchen areas)
A. DAILY SERVICES - Five (5) nights each week, between 5:30 p.m. and before
8:00 a.m. of the following day, except no cleaning on Holidays. On the last day
of the week, the work will be done after 5:30 p.m. Friday, but before 8:00 a.m.
Monday, except no cleaning on Holidays.
1. Empty and clean wastebaskets, ash trays and other receptacles and
return to original location. Wastepaper and trash from offices shall be bagged
and compacted on premises. Trash bags will be removed from offices inside a maid
cart to help prevent carpet staining. Spots on carpet resulting from broken
trash bags will be cleaned by cleaning contractor. Wastebaskets are cleaned and
new liners are put in when noticeably dirty.
2. Sweep all hard surface (wood, resilient tile, etc.) floors with
specially treated cloths to insure dust-free floors. Spot mop all tile flooring
with special attention to spills, stains and scuff marks.
3. Vacuum all carpeted common areas nightly and other areas as needed
when noticeably dirty.
4. Dust and wipe clean all furniture (including modular, tops and
caps), fixtures, desk equipment, displays, sconce and wall lights, baseboards,
chair rails, doors, window xxxxx, railings, picture frames (frames only, not
paintings) and all other surfaces within reach that are not considered high
dusting. Occupied desk areas are not dusted. Telephones are only cleaned in
common use areas.
5. Spot clean walls, doors, door frames, wood panels, light switches
and surround areas, glass partitions and doors, fabric wall partitions and any
other surface with reach.
6. Damp wipe microwaves, refrigerators, tables, countertops and
similar surfaces in office kitchen areas. It will be the Tenant's responsibility
to clean, dispose of, or store plates, eating utensils, soft drink containers,
etc.
7. Wash and wipe drinking fountains, wash basins, and sinks.
8. Clean all glass furniture tops and glass walls and panels. Polish
as needed.
9. Mop vinyl tile floors.
B. WEEKLY - One (1) night each week, Sunday through Thursday
1. Vacuum upholstered furniture using proper attachments.
2. Vacuum chair tops as needed.
3. Edge vacuum carpet in heavily traveled areas.
C. MONTHLY - One (1) time each month
1. Dust blinds to prevent accumulation of dust.
-1-
2. High dust all areas not reached in daily dusting, including by not
limited to wall hangings, vertical surfaces (walls, partitions, louvers),
lighting fixtures, exit lights, window and door frames and ceiling vents.
3. Wash window xxxxx with mild cleaner.
D. QUARTERLY - One (1) time every three months
1. Vacuum drapes and fabric-covered walls, including those used as
office partitions and those in kitchens and other areas.
2. Tile Floors - spray shined or scrubbed and recoated.
3. TILE FLOORS - spray shined and buffed
E. AS NEEDED OR A MINIMUM OF - Two (2) times each year
1. Stripped and/or cleaned and waxed tile floors.
II. RESTROOMS
A. DAILY SERVICES - Five (5) nights each week between 5:30 p.m. and before
8:00 a.m. of the following day, except no cleaning on Holidays. On the last day
of the week, the work will be done after 5:30 p.m. Friday, but before 8:00 a.m.
Monday, except no cleaning on Holidays.
1. TRASH - removed and receptacles cleaned and new liner installed in
receptacle.
2. FLOORS - swept and mopped with a germicide cleaner. This floor area
includes tile base on walls.
3. WASH BASINS/URINALS/COMMODES - cleaned and sanitized.
4. MIRRORS/SHELVING/DISPENSERS/CHROME DISPENSERS/CHROME FIXTURES -
damp wiped with disinfectant.
5. SANITARY NAPKIN RECEPTACLES - refilled using materials supplied by
owner and cleaned by damp wiping and drying with a dry cloth to prevent
spotting.
6. TOWEL/TISSUE RECEPTACLES - refilled using materials supplied by
owner and cleaned by damp wiping and drying with a dry cloth to prevent
spotting.
7. WALLS - spot cleaned with germicide cleaner.
8. ALL SURFACES - dusted.
9. VESTIBULE CARPET - vacuumed.
B. WEEKLY - One (1) night each week; Sunday through Thursday
1. STALL WALLS - cleaned by damp wiping stalls, rinsing off excess
cleanser, and drying with a dry cloth to prevent spotting.
C. MONTHLY - One (1) time per month
1. ALL FLOORS - scrubbed with a germicide cleaner.
-2-
2. WALLS - washed with germicide cleaner.
D. QUARTERLY - One (1) time every three months
1. HARD SURFACE FLOOR - power scrubbed with a disinfectant cleaner.
-3-
EXHIBIT "H"
RISER LICENSE
THIS RISER LICENSE ("License Agreement") is made and entered into this __
day of June, 2006, between HEWLETT-PACKARD COMPANY, a Delaware corporation (the
"Landlord"), and XXXXXXXX & COMPANY, a Georgia corporation (the "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into a Lease dated June ___, 2006
(the "Lease") for premises located on the 2nd, 0xx, 0xx, 0xx, 0xx, 0xx and 10th
floors of that certain building known as 20 Perimeter Summit (the "Building")
which is located at 00 Xxxxxxxxx Xxxxxx Xxxxxxxxx X.X., XxXxxx Xxxxxx, Xxxxxxx,
Xxxxxxx; and
WHEREAS, Tenant is desirous of using certain Building Riser(s) (as defined
below) as required by its usual and ordinary business operations; and
WHEREAS, Landlord is willing to permit same only upon the following terms
and conditions. Unless otherwise defined in this License Agreement, all
initially-capitalized terms used herein shall have the meanings ascribed to them
in the Lease.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto agree as follows:
1. GRANT OF LICENSE. Subject to the terms and conditions of this License
Agreement, Landlord hereby grants to Tenant during the Term (as defined below)
non-exclusive access to the riser(s) in the Building designated by Landlord for
the common use of Building tenants (the "Riser(s)") for the sole purpose of
installing and maintaining therein during the Term such fiber optic and/or other
telecommunications wiring of Tenant (the "Telecom Cabling") as may be necessary
for Tenant to obtain telecommunications services to the Premises from outside
providers of such services, provided that such Telecom Cabling (i) does not
adversely affect the structure or safety of the Building; (ii) does not
adversely affect the electrical, mechanical or any other system of the Building
or the functioning thereof; (iii) does not displace or adversely affect any
existing lines, wiring, cabling or other equipment or facilities within the
Riser(s), and (iv) does not interfere with the operation of the Building or the
provision of services or utilities to Landlord, Tenant or any other tenant or
occupant of the Building. The grant of this license is personal to, and for the
sole benefit of and use by, Tenant or a Permitted Assignee and, accordingly, the
Riser(s)' use may not be assigned, sublet, licensed or otherwise transferred in
whole or in part (except pursuant to an assignment to a Permitted Assignee in
accordance with the terms of the Lease) to be used solely by such Permitted
Assignee for its own purposes and in accordance with this License Agreement. As
used herein, a "Permitted Assignee" shall mean an assignee of Tenant's interest
in the Lease pursuant to an assignment complying with the terms of Article 7 of
the Lease. No third party may use the Riser(s) (except a Permitted Assignee
pursuant to an assignment in accordance with the terms of the Lease) nor may
Tenant receive any fees or other payment for the use of such Risers. The
Riser(s) and any other parts of the Building that may be made available (in
Landlord's sole discretion) to Tenant for installation of the Telecom Cabling
are provided in their "AS-IS", `WHERE-IS" condition and Landlord makes no
representation or warranty, express or implied, as to the condition,
sufficiency, quality or fitness for any purpose of the Riser(s) or any other
part of the Building, and Landlord shall have no liability of any kind or nature
directly or indirectly arising from the installation, repair, maintenance, use
or operation of the Telecom Cabling.
Tenant's right to install, use and operate the Telecom Cabling as provided
herein shall be conditioned upon the continuing satisfaction by Tenant of each
and all of the following conditions: (i) the Telecom Cabling sought to be
installed and/or operated by Tenant shall be permitted under, and conform
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to the requirements of, all applicable Laws and Private Restrictions (including,
without limitation, all present and future rules and regulations of any local,
state or federal authority having jurisdiction with respect thereto, including,
without limitation, the City of Atlanta, the Federal Communications Commission,
and the Occupational Safety and Health Administration; (ii) Tenant shall obtain
and maintain at its sole expense all permits, licenses, variances,
authorizations and approvals (collectively, the "Permits") that may be required
to install, maintain, repair, use and operate the Telecom Cabling in compliance
with all applicable Laws and Private Restrictions; (iii) Tenant shall obtain
insurance coverages reasonably required by Landlord relating to the
installation, maintenance, repair, use and operation of the Telecom Cabling; and
(iv) the Landlord shall have approved the plans, dimensions and specifications
for the Telecom Cabling and the proposed method of installation within the
Riser(s), such approval not to be unreasonably withheld by Landlord (except as
otherwise provided in Section 2 below).
2. INSTALLATION. Tenant shall not install the Telecom Cabling without (a)
first obtaining Landlord's prior written approval of the method and manner of
installation and (b) the supervision of Landlord or it property manager (unless
Landlord or its property manager shall hereafter expressly advise Tenant in
writing that such supervision is not required), and all costs and expenses
associated with the installation of the Telecom Cabling shall be borne solely by
Tenant. Such supervision, if any, is solely to protect Landlord's own interests,
and Tenant shall not rely thereon for any purpose and Landlord not have any
liability to Tenant or anyone else for providing such supervision. Prior to
commencing the installation of the Telecom Cabling, Tenant shall submit plans
and specifications for the same for Landlord's review and approval, which
approval shall not be unreasonably withheld by Landlord (except as otherwise
provide in the last paragraph of this Section 2); provided, however, that
Landlord may withhold its consent in its sole discretion to any Telecom Cabling
that in the aggregate shall have a diameter in excess of four inches (4""). Once
the plans and specifications have been approved by Landlord, Tenant shall cause
the Telecom Cabling to be installed diligently, in a good and workmanlike
manner, and in accordance with the approved plans and specifications, in
accordance with applicable Laws, and otherwise in accordance with Article 6 of
the Lease. Prior to installation of the Telecom Cabling and any modifications or
changes thereto, Tenant shall submit in writing to Landlord all plans and
specifications for the Telecom Cabling for Landlord's consent and shall commence
work only after having obtained Landlord's written consent (which consent shall
not be unreasonably withheld). The materials, exact location and method of
installation of the Telecom Cabling, and the location of and method of
identifying and marking all Telecom Cabling and other equipment in the Riser(s),
are subject to the prior written consent of Landlord (which consent shall not be
unreasonably withheld). Tenant shall be solely and exclusively responsible for
inspecting the field conditions in the Riser(s) and other portions of the
Building in conjunction with the preparation of the plans and specifications.
Landlord may withhold its approval of the installation of the Telecom
Cabling without any duty to be reasonable if Landlord determines that the
installation, operation or removal of the Telecom Cabling will or is reasonably
likely to (A) damage the Riser(s) or any other part of the Building or void any
warranty or guaranty applicable to the Riser(s) or any other part of the
Building; (B) cause the violation of any applicable Law; (C) cause the violation
of any Private Restriction; or (D) interfere with any other lines, wiring,
cabling or other existing equipment or facilities located in the Riser(s) or
otherwise serving the Building.
3. TERM; REMOVAL. The term of the license granted herein (the "Term") shall
commence on the date on which Tenant commences installation of the Telecom
Cabling, but in no event earlier than the date Tenant is permitted to take
possession of the Premises under the terms of the Lease, and shall end and
terminate without notice or further action upon the expiration or sooner
termination of the Lease. Prior to the end of the Term, the Telecom Cabling
shall be removed by Tenant without causing any damage to or interference with
the Riser(s) or any cabling, wiring, equipment or other facilities located
therein, all at Tenant's sole expense. Prior to the end of the Term, Tenant
shall repair all damage resulting from such removal and shall restore the areas
where the Telecom Cabling was located to substantially the same condition as
existed prior to the installation thereof, and such restoration shall be in a
manner and shall use materials reasonably determined by Landlord. If Tenant
fails to do so prior to the fifth (5th) day after the end of the Term, Tenant
hereby authorizes Landlord to remove the Telecom Cabling and to restore the
areas where the Telecom Cabling was located, and charge the Tenant for all
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reasonable costs and expenses incurred in connection therewith. Tenant's
obligations under this Section 3 shall survive the expiration or earlier
termination of this License Agreement and the Lease. Landlord shall have the
right to accompany Tenant or its contractor in the removal of the Telecom
Cabling. Tenant's obligations under this Section 3 shall survive the expiration
or earlier termination of this License Agreement and the Lease.
4. PERMITS. Prior to commencing the installation, repair, use or operation
of the Telecom Cabling, Tenant shall, at its sole expense, obtain all Permits
that may be required to install, maintain, repair, use and operate the same in
compliance with all applicable Laws and Private Restrictions, and Tenant shall
deliver copies of such Permits to Landlord prior thereto. Landlord makes no
representations or warranties, express or implied, with respect to the
availability of any Permits. Tenant shall obtain all permits, licenses,
variances, authorizations and approvals that may be required in order to install
and maintain the Telecom Cabling.
5. REPAIR AND MAINTENANCE; ACCESS. Tenant shall keep and maintain the
Telecom Cabling in good condition and repair, at Tenant's sole expense. Such
repairs and maintenance shall be conducted in such a manner as not to interfere
with the use or operation of any other lines, cabling, wiring, equipment or
other facilities now or hereafter located in the Riser(s) or otherwise serving
the Building and shall be consistent with Class A multi-tenant office buildings
of comparable age in the Central Perimeter Market of Atlanta, Georgia. Tenant
shall notify Landlord of any maintenance or repairs of the Telecom Cabling that
Tenant proposes to conduct, and Landlord shall have the right in advance to
approve the contractors or other Persons that Tenant proposes to perform the
maintenance or repairs. Furthermore, in connection with any repairs or
maintenance or exercise of its rights under this License Agreement, Tenant shall
not damage, nor permit any Tenant Party to damage, the Riser(s) (including any
lines, cabling, wiring, equipment or other facilities now or hereafter located
in the Riser(s)) or any other part of the Building. Tenant shall have reasonable
access to the Riser(s) for the purpose of installing, operating, maintaining,
repairing and removing the same, subject always to such Rules and Regulations as
are now in effect or which may be promulgated hereafter, provided, further that
such access shall be limited to authorized engineers or contractors of Tenant,
or Persons under their direct supervision. Tenant shall deliver to Landlord a
list of Tenant's authorized representatives, and repair, maintenance and
engineering personnel, prior to any access to the Riser(s) or any other Building
areas. Those Persons shall be required to sign in and out with Landlord's
security or other designated personnel when entering or exiting any closets,
rooms or other Building areas providing access to the Riser(s). Landlord shall
have the right to require accompanied access to the Riser(s) each time such
access is requested by Tenant. Landlord shall have no responsibility or
liability for the conduct or safety of any of Tenant's engineers, contractors,
personnel or other representatives or any of their employees, contractors or
other personnel while in the closets, rooms or other Building areas providing
access to the Riser(s) or in any other part of the Building. The parties agree
that Tenant shall be solely liable for any injury to or death of any such
Persons from any cause other than Landlord's sole, affirmative gross negligence
or willful misconduct.
6. LICENSE NOT EXCLUSIVE. Tenant acknowledges and agrees that the rights
contained in this License Agreement are non-exclusive, and that Landlord may
grant such rights and/or other rights to any other tenants or occupants of the
Building or to any other licensee of Landlord's choice (whether or not such
licensee is a tenant or occupant of the Building). Tenant shall make no claim
against Landlord for, and Landlord shall have no liability for, any interference
with the Telecom Cabling that may now or hereafter occur by reason of any other
lines, wiring, cabling or other equipment or facilities now or hereafter located
in the Riser(s), except to the extent such interference was caused by Landlord's
sole, affirmative gross negligence or willful misconduct.
7. COMPLIANCE WITH LAW AND WARRANTIES. Tenant, at its sole expense, shall
install, maintain, repair, use, operate and remove the Telecom Cabling in
compliance with all applicable Laws, Private Restrictions, and the requirements
of Landlord's insurance underwriters, and without interfering with any other
lines, wiring, cabling or other equipment or facilities now or hereafter located
in the Riser(s) or otherwise serving the Building.
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8. ALTERATIONS. Tenant shall not make any alterations, improvements or
additions to the Telecom Cabling, or move the same, without the prior written
consent of Landlord, which consent may be withheld in Landlord's sole and
absolute discretion.
9. TENANT'S INSURANCE. If Tenant's liability and property insurance
policies required under Sections 9.1(a)(i) and (ii) of the Lease do not cover
the Telecom Cabling and occurrences in the Riser(s) and any other areas where
the Telecom Cabling may be located, then Tenant, with respect solely to this
License Agreement, the Riser(s) and the Telecom Cabling (wherever located)
shall, at its sole expense, obtain, maintain, and keep in effect throughout the
Lease Term insurance with coverages, amounts, and insurers reasonably acceptable
to Landlord and, in the case of liability insurance, naming Landlord, its
property manager, and Lenders as additional insureds thereunder. Prior to the
installation of the Telecom Cabling, and thereafter within ten (10) days of
Landlord's written request, Tenant shall provide to Landlord certificates of
insurance evidencing such insurance coverages. If the cost of Landlord's
insurance increases as a result of this License Agreement or the Telecom Cabling
then Tenant shall pay the costs of such increases directly to Landlord within
thirty (30) days following written demand from Landlord.
10. ASSUMPTION OF RISK; INDEMNIFICATION. Tenant agrees that the
installation, repair, maintenance, use, operation and removal of the Telecom
Cabling will be at Tenant's sole cost and risk including, without limitation,
the risk that it will be unable to use or operate the Telecom Cabling as a
result of any structural, mechanical or power failure at the Building or failure
of the Telecom Cabling for any other reason whatsoever, except Landlord's sole,
affirmative gross negligence or willful misconduct and without limitation of
Tenant's rights under the second paragraph of Section 5.6 of the Lease. Landlord
shall not be liable to Tenant for any Adverse Consequences arising out of any
interruption of power to, damage to, or failure of the Telecom Cabling howsoever
arising, except for damage to Telecom Cabling caused by the sole, affirmative
gross negligence or willful misconduct of Landlord. Tenant shall indemnify,
defend, and hold Landlord harmless from and against all Adverse Consequences
arising out of the installation, use, repair, maintenance, operation, removal or
existence of the Telecom Cabling including, without limitation, any Adverse
Consequences resulting from the acts or omissions of Tenant or any Tenant Party
in connection with the accessing of any Risers, except to the extent such
Adverse Consequences were caused by Landlord's sole, affirmative gross
negligence or willful misconduct. The provisions of this Section 10 shall
survive the expiration or earlier termination of this License Agreement and the
Lease.
11. DEFAULT BY TENANT. Each one of the following events is herein referred
to as an "event of default":
a. Tenant shall fail to keep, observe or perform any agreement, term,
covenant or condition to be performed by it under the Lease and such default is
not cured within the applicable cure period, if any;
b. Any of Tenant's rights under this License Agreement shall be
transferred to or shall pass to any other person or party (other than pursuant
to an assignment to a Permitted Assignee in accordance with Article 7 of the
Lease) without Landlord's prior written approval; or
c. Tenant shall fail to perform any agreement, term, covenant or
condition under this License Agreement on Tenant's part to be performed, and
such non-performance shall continue for a period of thirty (30) days after
written notice thereof by Landlord to Tenant, or if such performance cannot be
reasonably had within such thirty (30) day period, Tenant shall not in good
faith have commenced such performance within such thirty (30) day period and
shall not thereafter diligently prosecute the same to completion.
12. REMEDIES OF LANDLORD. If any one or more events of default described
above shall occur, then the same shall also constitute an Event of Default under
the Lease and in such event Landlord shall have the right, at Landlord's sole
option, and in addition to all other rights and remedies that Landlord may have,
to terminate this License Agreement by written notice to Tenant and to pursue
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any remedy or remedies described in Section 12.2 of the Lease and any other
remedy available to Landlord at law or in equity, all in such manner and in such
order as Landlord may determine in its sole discretion.
13. NOTICE. Any notice from Landlord to Tenant or from Tenant to Landlord
shall be in writing and shall be delivered in accordance with the terms of the
Lease.
14. ATTORNEYS' FEES. In the event of any litigation or arbitration between
Landlord and Tenant to enforce any provision of this License Agreement or any
right of either party hereto, the unsuccessful party to such litigation or
arbitration shall pay to the successful party all costs and expenses, including
reasonable attorneys' fees, incurred therein.
15. CONFLICT. Nothing in this License Agreement shall relieve Tenant from
any of its obligations under the Lease. In the event of any conflict between any
term or provision of this License Agreement and any term or provision of the
Lease, the term or provision of the Lease shall govern and prevail.
IN WITNESS WHEREOF, Landlord and Tenant have executed this License
Agreement as of the day and year first above written.
LANDLORD:
HEWLETT-PACKARD COMPANY,
a Delaware corporation
By: /s/ X.X. X'Xxxxx
---------------------------------
Name: Xxxxxxx X'Xxxxx
-------------------------------
Title: R.E. Mgr.
------------------------------
TENANT:
XXXXXXXX & COMPANY,
a Georgia corporation
By: /s/ X.X. Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
-------------------------------
Title: SVP-Controller and Interim CFO
------------------------------
Date: 6/22/06
-------------------------------
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 REFERENCES ................................................... 1
ARTICLE 2 PREMISES, TERM AND POSSESSION ................................ 5
2.1 Demise of Premises ............................................. 5
2.2 Initial Tenant Improvement Work;
Acceptance of Possession ....................................... 7
2.3 Surrender of Possession ........................................ 7
2.4 Usufruct ....................................................... 8
ARTICLE 3 RENT; LATE CHARGES ........................................... 8
3.1 Base Monthly Rent .............................................. 8
3.2 Additional Rent ................................................ 8
3.3 Statement of Estimated Increase ................................ 9
3.4 Statement of Actual Property Operating Expenses;
Year-End Adjustments ........................................... 9
3.5 Late Charge, and Interest on Rent in Default ................... 9
3.6 Payment of Rent ................................................ 10
3.7 Prepaid Rent ................................................... 10
3.8 Tenant's Audit Rights .......................................... 10
ARTICLE 4 USE OF PREMISES AND COMMON AREAS ............................. 11
4.1 Permitted Use .................................................. 11
4.2 General Limitations on Use ..................................... 11
4.3 Noise and Emissions ............................................ 12
4.4 Premises Condition; Window Coverings ........................... 12
4.5 Parking ........................................................ 12
4.6 Signs .......................................................... 12
4.7 Compliance with Laws and Private Restrictions .................. 14
4.8 Compliance with Insurance Requirements ......................... 14
4.9 Landlord's Right to Enter ...................................... 14
4.10 Use of Common Areas ............................................ 15
4.11 Environmental Protection ....................................... 15
4.12 Rules and Regulations .......................................... 16
4.13 Reservations ................................................... 16
ARTICLE 5 REPAIRS, MAINTENANCE, SERVICES AND UTILITIES ................. 17
5.1 Repair and Maintenance ......................................... 17
5.2 Standard Tenant Services ....................................... 18
5.3 Overstandard and After Hours Tenant Use ........................ 18
5.4 Additional Services ............................................ 19
5.5 Energy and Resource Consumption ................................ 19
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TABLE OF CONTENTS
(continued)
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5.6 Limitation of Landlord's Liability ............................. 19
5.7 Security ....................................................... 20
5.8 Tenant's Supplemental Air Conditioning Equipment ............... 21
ARTICLE 6 ALTERATIONS AND IMPROVEMENTS ................................. 22
6.1 By Tenant ...................................................... 22
6.2 Ownership of Improvements ...................................... 23
6.3 Alterations Required By Law .................................... 23
6.4 Liens .......................................................... 24
ARTICLE 7 ASSIGNMENT AND SUBLETTING BY TENANT .......................... 24
7.1 By Tenant ...................................................... 24
7.2 Merger, Reorganization, or Sale of Assets ...................... 25
7.3 Landlord's Election ............................................ 25
7.4 Conditions to Landlord's Consent ............................... 26
7.5 Assignment Consideration and Excess Rentals Defined ............ 27
7.6 Payments ....................................................... 27
7.7 Good Faith ..................................................... 27
7.8 Effect of Landlord's Consent; No Sub-Subletting ................ 27
7.9 Permitted Transfers ............................................ 27
7.10 Fees Incurred in Assignment After Bankruptcy of Tenant ......... 28
ARTICLE 8 LIMITATION ON LANDLORD'S LIABILITY AND INDEMNITY ............. 28
8.1 Limitation on Landlord's Liability and Release ................. 28
8.2 Indemnification ................................................ 28
ARTICLE 9 INSURANCE .................................................... 29
9.1 Tenant's Insurance ............................................. 29
9.2 Landlord's Insurance ........................................... 30
9.3 Mutual Waiver of Subrogation ................................... 31
ARTICLE 10 DAMAGE TO PREMISES ........................................... 31
10.1 Landlord's Duty to Restore ..................................... 31
10.2 Insurance Proceeds ............................................. 31
10.3 Landlord's Right to Terminate .................................. 31
10.4 Tenant's Right to Terminate .................................... 32
10.5 Waiver ......................................................... 32
10.6 Abatement of Rent .............................................. 33
10.7 Effect of Termination .......................................... 33
ARTICLE 11 CONDEMNATION ................................................. 33
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TABLE OF CONTENTS
(continued)
PAGE
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11.1 Tenant's Right to Terminate .................................... 33
11.2 Landlord's Right to Terminate .................................. 33
11.3 Restoration .................................................... 33
11.4 Temporary Taking ............................................... 34
11.5 Division of Condemnation Award ................................. 34
11.6 Abatement of Rent .............................................. 34
11.7 Taking Defined ................................................. 34
ARTICLE 12 DEFAULT AND REMEDIES ......................................... 34
12.1 Events of Tenant's Default ..................................... 34
12.2 Landlord's Remedies ............................................ 35
12.3 Landlord's Default and Tenant's Remedies ....................... 38
12.4 Waiver ......................................................... 38
ARTICLE 13 GENERAL PROVISIONS ........................................... 38
13.1 Taxes on Tenant's Property ..................................... 38
13.2 Holding Over ................................................... 38
13.3 Subordination .................................................. 39
13.4 Tenant's Attornment Upon Foreclosure ........................... 39
13.5 Mortgage Protection ............................................ 40
13.6 Estoppel Certificate ........................................... 40
13.7 Tenant's Financial Information ................................. 40
13.8 Transfer by Landlord ........................................... 40
13.9 Force Majeure .................................................. 40
13.10 Notices ........................................................ 41
13.11 Attorneys' Fees ................................................ 41
13.12 Definitions .................................................... 41
13.13 General Waivers ................................................ 46
13.14 Miscellaneous .................................................. 47
13.15 Submission of Lease ............................................ 47
13.16 No Light, Air or View Easement ................................. 47
13.17 Right to Lease ................................................. 47
13.18 OFAC Requirements .............................................. 47
13.19 No Money Damages ............................................... 48
13.20 Rent ........................................................... 48
13.21 Jury Trial Waiver .............................................. 48
13.22 Real Estate Investment Trust ................................... 48
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TABLE OF CONTENTS
(continued)
PAGE
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ARTICLE 14 CORPORATE AUTHORITY BROKERS AND ENTIRE AGREEMENT ............. 48
14.1 Corporate Authority ............................................ 48
14.2 Brokerage Commissions .......................................... 49
14.3 Entire Agreement; Modifications ................................ 49
14.4 Landlord's Representations ..................................... 49
14.5 Landlord Exculpation ........................................... 49
ARTICLE 15 OPTION TO EXTEND ............................................. 49
15.1 Option to Extend; Exercise of Option ........................... 49
15.2 Determination of Base Monthly Rent ............................. 50
ARTICLE 16 SECURITY DEPOSIT ............................................. 51
16.1 Security Deposit (Cash) ........................................ 51
16.2 Security Deposit (Letter of Credit) ............................ 52
16.3 Draws .......................................................... 53
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