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EXHIBIT 10.14
STATE OF GEORGIA
COUNTY OF GWINNETT
LEASE
THIS LEASE, made this 8th day of December, 1998, between TECHNOLOGY
PARK/ATLANTA, INC. (hereinafter called "Lessor"), and FUNDTECH LTD. (hereinafter
called "Lessee");
W I T N E S S E T H: THAT,
WHEREAS, Lessor is the owner of that certain building situated at
000/000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, 00000, Xxxxxxxx Xxxxxx, Xxxxxxx
(hereinafter called the "Building") and located on the property (hereinafter
called the "Land"; the Land and the Building are herein collectively called the
"Property") described on EXHIBIT "A", attached hereto and by this reference
incorporated herein; and
WHEREAS, Lessee wishes to lease from Lessor approximately 21,647
rentable square feet (20,628 usable square feet) of the Building, which area is
outlined in red on the diagram marked EXHIBIT "B", attached hereto and by this
reference incorporated herein and made a part hereof (hereinafter called the
"Premises");
NOW, THEREFORE, in consideration of the payment of the rent and the
keeping and performance of the covenants and agreements by Lessee as hereinafter
set forth, Lessor does hereby lease to Lessee, and Lessee does hereby lease from
Lessor, the Premises. No easement for light or air is included in the Premises.
FOR AND IN CONSIDERATION of the leasing of the Premises as aforesaid,
the parties hereby covenant and agree as follows:
1. TERM. Subject to Section 22 hereof, the term (hereinafter called the
"Lease Term") of this Lease shall commence on February 1, 1999 (hereinafter
called the "Commencement Date") and, unless sooner terminated pursuant to the
provisions hereof, shall expire at 11:59 p.m. on the day before the date which
is five (5) years after the Commencement Date.
2. RENT.
2.1 The annual base rental (hereinafter called "Annual Base Rental")
for the Premises shall be TWO HUNDRED FORTY EIGHT THOUSAND NINE HUNDRED FORTY
AND 50/100 DOLLARS ($248,940.50). The Annual Base Rental shall be payable in
equal monthly installments of TWENTY THOUSAND SEVEN HUNDRED FORTY FIVE AND
04/100 DOLLARS ($20,745.04) (hereinafter called "Base Rent") in advance on the
first day of each and every calendar month during the Lease Term. Base Rent
shall be prorated at the rate of 1/30th of the Base Rent per day for any partial
month. Beginning February 1, 2000, and each February 1 thereafter throughout the
Lease Term, the Annual Base Rental and Base Rent shall automatically increase by
an amount equal to three percent (3%) over the preceding twelve months Annual
Base Rental and Base Rent.
2.2 Lessee shall pay the rent and all other sums, amounts, liabilities,
and obligations which Lessee herein assumes or agrees to pay (whether designated
Base Rent, additional rent, costs, expenses, damages, losses, or otherwise) (all
of which are hereinafter called "Amount Due") as herein provided promptly at the
times and in the manner herein specified without deduction, setoff, abatement,
counterclaim, or defense except as otherwise provided in this lease. If any
Amount Due is not received by Lessor on or before the date on which it is due,
Lessee shall pay Lessor a late charge equal to five percent (5%) of the amount
of such past due payment, notwithstanding the date on which such payment is
actually paid to Lessor. If such Amount Due is not paid within thirty (30) days
of the date on which it was originally due, then, in addition to such late
charge, Lessee shall pay Lessor interest on such Amount Due from the date on
which it was originally due until the date it is actually paid at a rate per
annum equal to the lesser of (i) the prime rate of interest announced by
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Wachovia Bank of Georgia, N.A., or its successors, from time to time for 90-day
unsecured loans to its best commercial customers plus five percent (5%) or (ii)
the maximum rate permitted by applicable law. Any such late charge and interest
shall be due and payable at the time of actual payment of the Amount Due. Any
Amount Due payable to Lessor by Lessee shall be paid in cash or by check at the
office of Lessor, x/x Xxxxxxxxxx Xxxx/Xxxxxxx, Xxx., Xxxxx 000, 00000 Xxxxxxx
Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000, or at such other place or places as Lessor
may from time to time designate in writing.
2.3 Contemporaneously with the execution of this Lease, Lessee shall
pay Lessor a security deposit in the amount of TWENTY THOUSAND SEVEN HUNDRED
FORTY FIVE AND 04/100 DOLLARS ($20,745.04) (hereinafter called the "Security
Deposit") to be held by Lessor with interest for the performance by Lessee of
Lessee's covenants and obligations under this Lease. If Lessee shall at any time
fail to pay any Amount Due, Lessor may, but shall not be obligated to, from time
to time and without prejudice to any other remedy, apply all or any portion of
the Security Deposit to the extent necessary toward the payment of any such
Amount Due. In the event Lessor applies the Security Deposit or a portion
thereof as provided in this paragraph 2.3, Lessee shall immediately upon notice
from Lessor of such application pay the amount so applied to Lessor, it being
the intent of the parties that the Security Deposit held by Lessor always be in
the amount stated above. It is expressly understood and agreed, however, that
the Security Deposit shall not be considered an advance payment of rent or a
measure of Lessor's damages in the event of any default by Lessee. If, at the
expiration or other termination of this Lease, Lessee is not in default of any
of its covenants, the Security Deposit shall be returned by Lessor to Lessee
with interest.
3. INTENTIONALLY DELETED
4. SHARED EXPENSES.
4.1 During the Lease Term, Lessee shall pay as additional rent in
monthly installments Lessee's Proportionate Share (as hereinafter defined) of
Shared Expenses (as hereinafter defined). Lessee shall also pay as additional
rent all other charges, costs and expenses not included within Shared Expenses
which are incurred by Lessor as a result of any use of the Premises by Lessee.
Lessee's Proportionate Share of Shared Expenses shall be prorated as necessary
for any year during which this Lease is effective for less than the full twelve
month calendar year. Shared Expenses shall be calculated on an accrual basis.
4.2 "Total Rentable Area" shall mean all space within Xxxxxxxxx 000/000
Xxxxxxxxxx Xxxxxxx designed and designated for individual tenant occupancy
whether such space is currently subject to a lease by an individual tenant or
not, including publicly used hallways, entryways, atriums or similar areas used
in common with other tenants of the Buildings, if any. The parties hereby
acknowledge that the Total Rentable Area within the Buildings is 116,537 square
feet.
4.3 "Lessee's Proportionate Share" shall mean that proportion of the
Shared Expenses that the area of the Premises bears to the Total Rentable Area
of the Buildings. Specifically, the parties acknowledge that the Premises
occupied by Lessee is 21,647 square feet out of a Total Rentable Area of 116,537
square feet; therefore, for any applicable period, the Lessee's Proportionate
Share of Shared Expenses, to be paid by Lessee to Lessor, is 18.58%.
4.4 For purposes of this Lease, the term "Shared Expenses" shall mean
the operating and maintenance expenses incurred by Lessor pertaining to all
areas of the Building and the Land used in common with other tenants of the
Building, including, but not limited to, the exterior structure, walls and roof
of the Building, publicly used hallways, entryways, atriums, lawns, gardens,
sidewalks, driveways and parking lots (herein collectively called the "Common
Area"). Shared Expenses shall include, but not be limited to:
4.4.1 The wages and salaries of all employees directly engaged
in the operation and maintenance of the Common Area, including employers' Social
Security taxes, unemployment, and other taxes which may be levied on or with
respect to such wages and salaries, and attributable overhead expenses. The
above costs are to be competitive with comparable buildings/projects in the
market.
4.4.2 All janitorial and other cleaning expenses and office
supplies and material used in the operation and maintenance of the Common Area
by Lessor.
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4.4.3 The cost of water, sewer, heating, lighting,
ventilation, electricity, air conditioning, and any other utilities supplied or
paid for by Lessor for the Common Area and the cost of maintaining the systems
supplying the same.
4.4.4 The cost of all agreements for maintenance and service
of the Common Area, including, but not limited to, agreements relating to pest
control and the cleaning and maintenance of equipment.
4.4.5 The cost of all sprinkler systems, fire extinguishers,
fire hoses, security services and protective services or devices rendered to or
in connection with the Land and the Building or any part thereof. Costs to be
competitive with comparable buildings/projects.
4.4.6 Insurance premiums for insurance for the Building and
Land required to be maintained by Lessor hereunder or which Lessor deems
appropriate (exclusive of additional premiums caused and paid for by Lessee or
other tenants of the Building).
4.4.7 The cost of repairs and general maintenance of the
Common Area and Land, including, but not limited to: maintenance of common
facilities; lawn mowing, gardening, landscaping and irrigation of landscaped
areas; line painting, pavement maintenance, sweeping and sanitary control;
removal of snow, trash, rubbish, garbage and other refuse; the cost of personnel
to implement such services, to direct parking and to police the common
facilities; the cost of exterior and interior painting; and the cost of
maintenance of sewers and utility lines.
4.4.8 Other than initial capital items the amortization
(together with reasonable financing charges) of the cost of installation of
capital investment items which are installed for the purpose of reducing
operating expenses, promoting safety, complying with governmental requirements
or maintaining the first class nature of the Property.
4.4.9 All real estate taxes, assessments and governmental or
other charges, general or special, ordinary or extraordinary, foreseen or
unforeseen, which are levied, assessed or otherwise imposed against the Land,
street lights, personal property, or rents, or on the right or privilege of
leasing the Land or collecting rents thereon by any federal, state, county or
municipal government or by any special sanitation district or by any other
governmental or quasi-governmental entity that has taxing or assessment
authority, and any other taxes and assessments attributable to the Building or
its operation, including but not limited to any Impositions payable by Lessor
pursuant to Section 16 hereof; but exclusive of federal or state income taxes
gross receipts and business taxes of Lessor.
4.4.10 All management expenses attributable to the Common Area
and Land, including, but not limited to: administrative expenses associated with
collecting rent, arranging for and assuring continuity of Common Area services,
supervising maintenance or repair, enforcing rules and regulations and generally
assuring compliance with the terms of this and other leases; salaries or wages
of persons employed or contracted to manage the Building; the cost of supplies
and materials, equipment and furnishings necessary for such management
functions; the cost of telephone service, attributable overhead expenses and any
other expenses and management fees directly relating to the management of the
Building. The total management fees shall not exceed four percent (4%) of total
rents collected.
4.4.11 All assessments (if any) assessed against the Land
during the Lease Term pursuant to any protective covenants now or hereafter of
record against the Land, including, without limitation, any assessments imposed
for the maintenance and repair of the common areas of Technology Park/Atlanta
pursuant to the covenants described in Section 26 hereof.
4.4.12 Those items specified in paragraph 7.1 hereof which are
Lessor's responsibility to maintain.
4.5 Nothing contained in this Section 4, including, but not limited to
the definition of "Shared Expenses" contained in Paragraph 4.4 hereof, shall
imply any duty on the part of Lessor to pay any expense or provide any service.
4.6 Prior to the Commencement Date and prior to each December 31
thereafter during the Lease Term, Lessor shall estimate the amount of Shared
Expenses and Lessee's Proportionate Share of Shared Expenses for the ensuing
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calendar year or (if applicable) fractional portion thereof and notify Lessee in
writing of such estimate. Such estimate shall be made by Lessor in the exercise
of its sole discretion. The amount of additional rent specified in each such
notification shall be paid by Lessee to Lessor in equal monthly installments in
advance on the Commencement Date and on the first day of each calendar month
thereafter during the Lease Term, at the same time and in the same manner as
Base Rent.
4.7 On or before each March 31 during the Lease Term, Lessor shall
advise Lessee of the amount of actual Shared Expenses for such prior calendar
year or fractional part thereof (if applicable). If Lessee's Proportionate Share
of Shared Expenses for such calendar year proves to be greater than the
estimated amount, Lessor shall invoice Lessee for the deficiency as soon as
practicable after the amount of underpayment as been determined, and Lessee
shall pay such deficiency to Lessor within thirty (30) days following its
receipt of such invoice. If, however, Lessee's Proportionate Share of Shared
Expenses for such calendar year is lower than the estimated amount, Lessee shall
receive a credit toward the next ensuing monthly payment of the estimated amount
of Lessee's Proportionate Share of Shared Expenses in an amount of such
overpayment, however, that in the event of the expiration or other termination
of this Lease, Lessee shall be refunded such overpayment as soon as practicable
thereafter after the amount of overpayment has been determined.
4.8 Lessee may, upon ten (10) days' prior written notice to Lessor, at
Lessee's expense and at any reasonable time, audit the books and supporting
documentation of Lessor pertaining exclusively to the calculation of Shared
Expenses. If Lessee disputes the amount of additional rent due pursuant to
paragraph 4.7 hereof, Lessee may institute arbitration proceedings and such
dispute shall be settled by arbitration in the City of Atlanta, Georgia, by a
panel of three members in accordance with the rules then in effect of the
American Arbitration Association; provided, however, that Lessee shall
immediately pay any disputed amount to Lessor, and if the arbitrators find that
Lessee has paid more than Lessee's Proportionate Share of Shared Expenses for
the previous calendar year, Lessor shall immediately pay such amount to Lessee.
The decision of the arbitrators acting hereunder shall be binding and conclusive
upon the parties. Lessor and Lessee shall each pay one-half of the cost of such
arbitration; provided, however, that if the arbitrators determine that the
arbitration proceedings were not instituted in good faith by Lessee, Lessee
shall pay the full cost thereof.
5. USE.
5.1 Lessee (and its permitted assignees and subtenants) shall use the
Premises only for general office and administrative, not in violation of the
protective or restrictive covenants hereinafter referred to, and for no other
purpose without the prior written consent of Lessor which consent shall not be
unreasonably withheld, delayed or conditioned. Lessee shall operate its business
in the Premises during the entire Lease Term and in a reputable manner in
compliance with all applicable laws, ordinances, regulations, covenants,
restrictions, and other matters shown on the public records, now in force or
hereafter enacted. Lessee will not knowingly permit, create, or maintain any
disorderly conduct, trespass, noise, or nuisance whatsoever about the Premises
which unreasonably annoys or disturbs any persons occupying adjacent premises
either within or without the Building.
5.2 Lessee shall not place or maintain machines, equipment, or other
apparatus which causes vibrations or noise that may be transmitted to the
Building structure or to any space to such a degree as to be unreasonably
objectionable to Lessor or to any tenant, occupant, or other person in the
Building. Neither Lessee nor any of Lessee's employees, agents or invitees shall
place or maintain within the Premises any stoves, ovens or space heaters, except
that Lessee may maintain one (1) microwave oven within the Premises so long as
such microwave oven uses standard 110V electrical service. Lessee shall not make
or permit any smoke or odor that is objectionable to the public or to other
occupants of the Building, to emanate from the Premises, and shall not create,
permit, or maintain a nuisance thereon, and shall not do any act tending to
injure the reputation of the Building.
5.3 Lessee shall cause all loading and unloading of any goods or
materials delivered to or sent from the Premises to be done only in the loading
dock area of the Premises or, if no loading dock area is located at the
Premises, then at the loading dock area of the Building or such other dock area
as Lessor may reasonably designate. Under no circumstances shall Lessee allow
any goods or materials delivered to or sent from the Premises to be stored on,
accumulate on or obstruct the loading dock area, dumpster pad, sidewalks,
driveways, parking areas, entrances or other public areas or spaces of the
Building or the Property. Lessee acknowledges that violations of this Paragraph
5.3 shall constitute a material breach of this Lease.
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5.4 Lessee shall not perform or permit any work, including, but not
limited to, assembly, construction, mechanical work, painting, drying, layout,
cleaning, or repair of goods or materials, to be done on the loading dock,
sidewalks, driveways, parking areas, landscaped areas of the Building or the
Property.
5.5 Lessee shall not use, handle, store, deal in, discharge, or
fabricate any environmentally hazardous wastes, substances or materials as the
same are now or hereafter may be defined or classified by any local, state, or
federal environmental protection legislation or regulation issued pursuant
thereto.
5.6 Lessee shall not abandon or vacate the Premises for more than
thirty (30) days during the Lease Term.
6. UTILITIES AND SERVICE.
6.1 Lessee shall pay during the Lease Term the costs of all utilities
furnished to the Premises, including, without limitation, water, gas (if any),
electricity, sewer and refuse disposal. To the extent water, sewer and refuse
disposal for the Premises and other tenant space within the Building are not
separately billed to Lessee and the other tenants of the Building, the costs for
such services shall be paid by Lessee to Lessor as a Shared Expense. Lessee
shall be solely responsible for the payment of all telephone and cable charges,
including, without limitation, the cost of installation at the Premises of all
telephone and cable equipment which shall be installed at the request of Lessee.
The furnishing of and cost of janitorial services for the Premises shall be the
sole responsibility of Lessee.
6.2 Lessor shall not be held liable for any damage or injury suffered
by Lessee or by any of Lessee's licensees, agents, invitees, servants,
employees, contractors, or subcontractors or any other person or entity engaged,
invited, or allowed to come onto the Premises by Lessee (hereinafter
collectively referred to as "Lessee Parties"), resulting directly, indirectly,
proximately, or remotely from the installation, use, or interruption of any
service to the Premises or Building, including, but not limited to, temporary
failure to supply any heating, air conditioning, electrical, water, or sewer
services, or any of them. No temporary failure to provide services shall relieve
Lessee from fulfillment of any covenant of this Lease, including, without
limitation, the covenant to pay any Amount Due in the manner and amounts, and
promptly at the times set forth herein.
7. MAINTENANCE.
7.1 Lessor shall not be obligated to maintain or make any repairs or
replacements to the Premises during the Lease Term except for the roof and roof
membrane, foundation, structural columns and supports, exterior walls
(excluding, however, glass doors), all exterior sewer and exterior utility lines
to the Building, and the Common Area, and Lessee covenants and agrees to assume
all responsibility of repair and maintenance of the inside of the Premises.
7.2 Upon commencement of the Lease Term, Lessee shall accept and occupy
the Premises for its intended use, and Lessee shall, at its sole cost, risk,
expense and liability, keep and maintain the Premises in good order and repair,
and in compliance with all applicable governmental codes, ordinances and
regulations. Lessee shall also (i) keep all sewer and utility lines servicing
the Premises, and located within the Premises including, without limitation, all
sewer connections, plumbing, heating, ventilating and air conditioning equipment
and appliances, wiring and glass, in good order and repair; (ii) provide
janitorial services for the Premises; and (iii) keep the Premises free from all
litter, dirt, debris and obstructions and in a clean and sanitary condition.
Lessee shall enter into a contract approved by Lessor for the maintenance of all
heating, ventilating, and air conditioning equipment located in or serving the
Premises. At all times the Premises shall be kept in accordance with the
standards then prevailing in Technology Park/Atlanta and all such maintenance,
repair, replacement and work performed pursuant to this section shall be
performed in accordance with such standards.
7.3 At the expiration or other termination of this Lease, Lessee shall
surrender the Premises (and the keys thereto) in as good condition as when
received, loss by fire or other casualty not the result of any act or omission
of Lessee, or ordinary wear and tear only, excepted.
7.4 Nothing in this Section 7 shall be deemed to relieve Lessee from
any liability which Lessee may have to Lessor under the terms of this Lease or
otherwise, on account of any damage as may be caused to the Premises or the
Building by the negligence or misconduct of Lessee or any of the Lessee Parties.
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7.5 As used in this Section 7, "repair and maintenance" shall include
repairs and replacements, and the standard shall be the good, clean and safe
condition of a first class office building in north suburban Atlanta, Georgia.
8. FORCE MAJEURE. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive government laws or regulations, riots,
insurrection, war, or other reason of a like nature other than finance not the
fault of the party delayed in performing work or doing acts required under the
terms of this Lease, then performance of such act shall be excused for the
period of the delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of the delay. The provisions of
this Section 8 shall not cancel, postpone, or delay the due date of any payment
to be made by Lessee hereunder, nor operate to excuse Lessee from prompt payment
of any Amount Due required by the terms of this Lease.
9. PROPERTY AND LIABILITY INSURANCE.
9.1 Throughout the Lease Term, Lessor will insure the Building
(excluding foundations and excavations), the Building standard leasehold
improvements, and the machinery, boilers, and equipment contained therein owned
by Lessor (excluding any property Lessee is obliged to insure pursuant to
Paragraph 9.3 below) against damage by fire and the perils insured in the
standard extended coverage endorsement. Lessor shall also, throughout the Lease
Term, carry public liability insurance with respect to the ownership and
operation of the Building.
9.2 Lessee shall comply with all insurance regulations so the median
fire, extended coverage, and liability insurance rates available for use of the
Building as normal office space may be obtained by Lessor and will not use or
keep any substance or material in or about the Premises which may vitiate or
endanger the validity of insurance on the Building, increase the hazard or the
risk beyond that for a normal office building, or result in an increase in
premium on the insurance on the Building. If any insurance policy upon the
Premises or the Building or any part thereof shall be canceled or shall be
threatened by the insurer to be canceled, the coverage thereunder reduced or
threatened to be reduced, or the premium therefor increased or threatened to be
increased in any way by the insurer by reason of the use and occupation of the
Premises by Lessee or by any assignee or subtenant of Lessee and if Lessee fails
to remedy the condition giving rise to the cancellation, reduction, or premium
increase or threat thereof within ten (10) days after notice thereof by Lessor,
Lessor may, at its option, do any one of the following:
9.2.1 Declare a default by Lessee, and thereupon the
provisions of Section 12 shall apply; or
9.2.2 Enter upon the Premises and remedy the condition giving
rise to the cancellation, reduction, or premium increase or threat thereof, and
in such event, Lessee shall forthwith pay the cost thereof to Lessor as
additional rent; and if Lessee fails to pay such cost, Lessor may declare a
default by Lessee and thereupon the provisions of Section 12 shall apply (Lessor
shall not be liable for any damage or injury caused to any property of Lessee or
of others located on the Premises as a result of the re-entry); or
9.2.3 If the sole action taken by the insurer is to raise the
premium or other monetary cost of the insurance, demand payment from Lessee of
the premium or other cost as additional rent hereunder, and if Lessee fails to
pay the increase to Lessor within ten (10) days of demand by Lessor, Lessor may
declare a default by Lessee and thereupon the provisions of Section 12 shall
apply. Lessee acknowledges that it has no right to receive any proceeds from any
insurance policies carried by Lessor and that such insurance will be for the
sole benefit of Lessor with no coverage for Lessee for any risk insured against.
9.3 Lessee shall, during its occupancy of the Premises and during the
entire Lease Term, at its sole cost and expense, obtain, maintain, and keep in
full force and effect, and with Lessee, Lessor, and Lessor's mortgagees named as
additional insureds therein as their respective interests may appear, the
following types and kinds of insurance:
9.3.1 Upon property of every description and kind owned by
Lessee and located in the Building or for which Lessee is legally liable or
which was installed by or on behalf of Lessee, including, without limitation,
furniture, fittings, installations, alterations, additions, partitions, and
fixtures (excluding, however, those improvements, if any, installed
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by Lessor in accordance with paragraph 10.1 hereof), against all risk of loss in
an amount not less than one hundred percent (100%) of the full replacement cost
thereof;
9.3.2 Public liability insurance in an amount not less than
$1,000,000.00 for any one occurrence; the insurance shall include coverage
against liability for bodily injuries or property damage arising out of the use
by or on behalf of Lessee of owned, non-owned, or hired automobiles and other
vehicles for a limit not less than that specified above; and shall also include
coverage for "Fire Legal" liability with respect to the Premises in an amount
not less than $100,000 or such higher limits as Lessor may reasonably require
from time to time.
9.3.3 Workers' compensation insurance in the amount required
by law to protect Lessee's employees; and
9.4 All insurance policies shall be taken out with companies acceptable
to Lessor licensed and registered to operate in the State of Georgia and in form
reasonably satisfactory to Lessor. The insurance may be by blanket insurance
policy or policies. Lessee shall deliver certificates evidencing the insurance
policies and any endorsement, rider, or renewal thereof, to Lessor. Certificates
evidencing renewals shall be delivered to Lessor no later than thirty (30) days
after each renewal, as often as renewal occurs, and in no event less than thirty
(30) days prior to the date on which the policy would otherwise expire. All
insurance policies shall require the insurer to notify Lessor and Lessor's
mortgagees in writing thirty (30) days prior to any material change,
cancellation, or termination thereof.
9.5 Lessor and Lessee hereby release the other from any and all
liability or responsibility to the other or to anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured or insurable (whether or not such
insurance is obtained) in policies of fire and extended coverage insurance
covering such property even if such loss or damage shall have been caused by the
fault or negligence of the other party, or any one for whom such party may be
responsible (other than acts, such as intentional wrongdoing or criminal
conduct, that are not waived in the standard waiver of subrogation provision in
commercial property insurance at the time of the loss or damage).
10. ALTERATIONS AND IMPROVEMENTS.
10.1 Lessor shall improve the Premises in accordance with working
drawings to be approved by Lessee and Lessor prior to commencement of
construction. The Premises will be prepared generally in accordance with the
plans shown on EXHIBIT "C", attached hereto and by this reference made a part
hereof. Lessor shall have such work performed promptly, diligently and in a good
and workmanlike manner. Lessor shall provide Lessee with an allowance (the
"Allowance") of FOUR HUNDRED SEVENTY NINE THOUSAND TWO HUNDRED SIXTY FOUR AND
50/100 ($479,264.50) or $22.14 per rentable square foot for the design and
construction of the improvements to the Premises in accordance with such
drawings, including, without limitation, all costs of design, all costs of
materials and labor to install such improvements, and Lessor will pay all such
costs as and when incurred by Lessor on a timely basis to the extent of the
Allowance. If such costs should exceed the Allowance, then Lessee shall pay for
all such costs in excess of the Allowance on the Commencement Date. Base
Building Improvements shall not be included as part of the Allowance, or as
improvements to the Premises and shall include the Building exterior walls, the
roof, the exterior windows, one half of the demising wall between lessees, the
building electrical transformer (excluding Lessee's electrical distribution
panel), sprinkler system installation (excluding head relocation and drops),
main trunk lines for sewer, concrete floor slab, and mini blinds.
10.2 Lessee shall not make any alterations, additions, or improvements
in or to the Premises, nor install or attach fixtures in or to the Premises,
without the prior written consent of Lessor, which consent Lessor shall not
unreasonably withhold, delay or condition. Lessors consent is not required on
nonstructural improvements which cost less than $5,000.00. All alterations,
additions, or improvements made, installed in, or attached to the Premises by
Lessee, upon the consent specified above, shall be made at Lessee's expense in a
good and workmanlike manner, strictly in accordance with the plans and
specifications approved by Lessor, all applicable laws, ordinances, regulations,
and other requirements of any appropriate governmental authority, and any
applicable covenants or other restrictions. Prior to the commencement of any
such work, Lessee shall deliver to Lessor certificates issued by insurance
companies licensed and registered to operate in the State of Georgia evidencing
that workers' compensation insurance and public liability insurance, all in
amounts satisfactory to Lessor, are in force and effect and maintained by all
contractors and subcontractors engaged by Lessee to perform the work.
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10.3 Lessee shall keep the Premises free from all liens, preliminary
notices of liens, right to liens, or claims of liens of contractors,
subcontractors, mechanics, or materialmen for work done or materials furnished
to the Property at the request of Lessee. Whenever and so often as any such lien
shall attach or claims or notices thereof shall be filed against the Property or
any part thereof as a result of work done or materials furnished to the Property
at the request of Lessee, Lessee shall, within thirty (30) days after Lessee has
notice of the claim or notice of lien, cause it to be discharged of record,
which discharge may be accomplished by deposit or bonding proceedings. If Lessee
shall fail to cause the lien, or such claim or notice thereof, to be discharged
within the thirty-day period, then, in addition to any other right or remedy,
Lessor may, but shall not be obligated to, discharge it either by paying the
amount claimed to be due or by procuring the discharge of the lien, or claim or
notice thereof, by deposit or bonding proceedings. Any amount so paid by Lessor
and all costs and expenses, including, without limitation, attorneys' fees,
incurred by Lessor in connection therewith shall constitute additional rent
payable by Lessee under this Lease and shall be paid by Lessee in full on demand
of Lessor together with interest thereon at the rate set forth in paragraph 2.2
hereof from the date it was paid by Lessor. Lessee shall not have the authority
to subject the interest or estate of Lessor to any liens, rights to liens, or
claims of liens for services, materials, supplies, or equipment furnished to
Lessee, and all persons contracting with Lessee are hereby charged with notice
that they must look to Lessee and to Lessee's interest only to secure payment.
10.4 All alterations, additions, or improvements, including, but not
limited to, fixtures, partitions, counters, and window and floor coverings,
which may be made or installed by either of the parties hereto upon the
Premises, irrespective of the manner of annexation, and irrespective of which
party may have paid the cost thereof, excepting only movable office furniture
and shop equipment put in at the expense of Lessee, shall be the property of
Lessor, and shall remain upon and be surrendered with the Premises as a part
thereof at the expiration or other termination of this Lease, without
disturbance, molestation, or injury. Further, notwithstanding anything contained
herein to the contrary except as otherwise provided in paragraph 9.3.1 hereof,
Lessor shall be under no obligation to insure the alterations, additions, or
improvements or anything in the nature of a leasehold improvement made or
installed by or on behalf of Lessee, and such improvements shall be on the
Premises at the risk of Lessee only.
10.5 In the event Lessor makes any capital investment, major structural
repairs or improvements in or to the Premises or Building which are required due
to any act or omission of Lessee or any of the Lessee Parties, any and all cost
and expenses incurred by Lessor in making the capital investment, major
structural repairs, or improvements shall constitute additional rent payable by
Lessee under this Lease and shall be paid by Lessee in full on demand of Lessor,
together with interest thereon from the date of the demand at the rate set forth
in paragraph 2.2 hereof.
11. ASSIGNMENT OR SUBLETTING.
11.1 Lessee shall not assign this Lease, or any interest herein, or
sublet or allow any other person, firm, or corporation to use or occupy the
Premises, or any part thereof, without the prior written consent of Lessor,
which consent will not be unreasonably withheld or delayed. Lessor shall have
the right to make such investigations as it deems reasonable and necessary in
determining the acceptability of the proposed assignee or subtenant. Such
investigations may include inquiries into the financial background, business
history, capability of the proposed assignee or subtenant in its line of
business, and the quality of its operations. Under no circumstances shall Lessor
be obligated to consent to the assignment of this Lease or the subletting of the
Premises to any entity whose operations violate the restrictive covenants
described in Section 26 hereof. Lessee shall provide to Lessor such information
as Lessor may reasonably require to enable it to determine the acceptability of
the proposed assignee or subtenant, including information concerning all of the
foregoing matters, and Lessor shall have no obligation to consent to any
assignment or subletting unless it has received from Lessee (at no cost or
expense to Lessor) the most recent audited financial statements of the proposed
assignee or subtenant a copy of the proposed sublease or assignment agreement,
(to be followed by a copy of the fully executed document), and such other
information as Lessor reasonably requires. No assignment or subletting (with or
without the consent of Lessor) shall release Lessee from its obligations under
this Lease nor shall Lessee permit this Lease or any interest herein or in the
tenancy hereby created to become vested in or owned by any other person, firm,
or corporation by operation of law or otherwise. The power of Lessor to give or
withhold its consent to any assignment or subletting shall not be exhausted by
the exercise thereof on one or more occasions, but shall be a continuing right
and power with respect to any type of transfer, assignment or subletting. Sale
of assets substantially all of the stock or assets of tenant will not be
considered an assignment for the provision of this section.
11.2 If Lessee shall assign this Lease or sublet the Premises in any
way not authorized by the terms hereof, the acceptance by Lessor of any Amount
Due from any person claiming as assignee, sublessee, or otherwise shall not be
construed as a recognition of or consent to the assignment or subletting or as a
waiver of the right of Lessor thereafter to
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collect any rent from Lessee, it being agreed that Lessor may at any time accept
any Amount Due under this Lease from any person offering to pay it without
thereby acknowledging the person so paying as a lessee in place of Lessee herein
named, and without releasing Lessee from the obligations of this Lease, and
without recognizing the claims under which such person offers to pay any Amount
Due, but it shall be taken to be a payment on account by Lessee.
12. DEFAULTS.
12.1 In the event that (i) Lessee shall fail to pay the Base Rent or
any other Amount Due for more than ten (10) days after its due date, or (ii)
Lessee shall fail to comply with any of the terms, covenants, conditions, or
agreements herein contained or any of the rules and regulations now or hereafter
established for the government of the Building and such failure to comply
continues for thirty (30) days after Lessor's written notice to Lessee thereof,
or (iii) Lessee shall fail for more than thirty (30) days after written notice
thereof from Lessor to Lessee to comply with any term, provision, condition or
covenant of any other agreement between Lessor and Lessee; then Lessor shall
have the option, but not the obligation, to do any one or more of the following
in addition to, and not in limitation of, any other remedy permitted by law, in
equity or by this Lease:
12.1.1 Terminate this Lease, in which event Lessee shall
surrender the Premises to Lessor immediately upon expiration of ten (10) days
from the date of the service upon Lessee of written notice to that effect,
without any further notice or demand. In the event Lessor shall become entitled
to the possession of the Premises by any termination of this Lease herein
provided, and Lessee shall refuse to surrender or deliver up possession of the
Premises after the service of such notice, then Lessor may, without further
notice or demand, enter into and upon the Premises, or any part thereof, and
take possession of and repossess the Premises as Lessor's former estate, and
expel, remove, and put out of possession Lessee and its effects, using such
help, assistance in so doing as may be needful and proper, without being liable
for prosecution or damages therefor, and without prejudice to any remedy allowed
by law available in such cases. Lessee shall indemnify Lessor for all loss,
cost, expense, and damage which Lessor may suffer by reason of the termination,
whether through inability to relet the Premises, or through decrease in rent or
otherwise. In the event of such termination, Lessor may, at its option, recover
forthwith as damages a sum of money equal to the total of (a) the cost of
recovering the Premises (including, without limitation, reasonable attorneys'
fees and cost of suit), (b) the unpaid rent earned at the time of termination,
plus late charges and interest thereon at the rate specified in paragraph 2.2
hereof, (c) the present value (discounted at the rate of 8% per annum) of the
balance of the rent for the remainder of the Lease Term less the present value
(discounted at the same rate) of the fair market rental value of the Premises
for said period, and (d) any other sum of money and damages owed by Lessee to
Lessor.
12.1.2 Without terminating this Lease, retake possession of
the Premises and rent the Premises, or any part thereof, for such term or terms
and for such rent and upon such conditions as Lessor may, in its sole
discretion, think best, making such changes, improvements, alterations, and
repairs to the Premises as may be required. All rent received by Lessor from any
reletting shall be applied first to the payment of any indebtedness other than
rent due hereunder from Lessee; second, to the payment of any costs and expenses
of the reletting, including but not limited to brokerage fees, attorneys' fees
and costs of such changes, improvements, alterations, and repairs; third, to the
payment of rent due and unpaid hereunder; and the residue, if any, shall be held
by Lessor and applied in payment of future rent or damage as they may become due
and payable hereunder. If the rent received from the reletting during the Lease
Term is at any time insufficient to cover the costs, expenses, and payments
enumerated above, Lessee shall pay any deficiency to Lessor, as often as it
shall arise, on demand.
12.1.3 Correct or cure the default and recover any amount
expended in so doing, together with interest thereon until paid.
12.1.4 Recover any and all costs incurred by Lessor resulting
directly or, indirectly, from the default, including but not limited to
reasonable attorneys' fees.
12.2 In the event of a default under this Lease by Lessee, Lessor shall
be entitled to all equitable remedies, including, without limitation, injunction
and specific performance.
12.3 Pursuit of any of the remedies herein provided shall not preclude
the pursuit of any other remedies herein provided or any other remedies provided
at law or in equity. Failure by Lessor to enforce one or more of the remedies
herein provided shall not be deemed or construed to constitute a waiver of any
default, or any violation or breach of any of the terms, provisions, or
covenants herein contained.
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13. BANKRUPTCY. The filing or preparation for filing by or against
Lessee of any petition in bankruptcy, insolvency, or for reorganization under
the Federal Bankruptcy Code, any other federal or state law now or hereafter
relating to insolvency, bankruptcy, or debtor relief, or an adjudication that
Lessee is insolvent, bankrupt, or an issuance of an order for relief with
respect to Lessee under the Federal Bankruptcy Code, any other federal or state
law now or hereafter relating to insolvency, bankruptcy, or debtor relief, or
the execution by Lessee of a voluntary assignment for the benefit of, or a
transfer in fraud of, its general creditors, or the failure of Lessee to pay its
debts as they mature, or the levying on under execution of the interest of
Lessee under this Lease, or the filing or preparation for filing by Lessee of
any petition for a reorganization under the Federal Bankruptcy Code, or for the
appointment of a receiver or trustee for a substantial part of Lessee's assets
or to take charge of Lessee's business, or of any other petition or application
seeking relief under any other federal or state laws now or hereafter relating
to insolvency, bankruptcy, or debtor relief, or the appointment of a receiver or
trustee for a substantial part of Lessee's assets or to take charge of Lessee's
business, shall automatically constitute a default in this Lease by Lessee for
which Lessor may, at any time or times thereafter, at its option, exercise any
of the remedies and options provided to Lessor in Section 12 hereof; provided,
however, that if such petition be filed by a third party against Lessee, and
Lessee desires in good faith to defend against the petition and is not in any
way in default of any obligation hereunder at the time of filing the petition,
and Lessee within ninety (90) days thereafter procures a final adjudication that
it is solvent and a judgment dismissing the petition, then this Lease shall be
fully reinstated as though the petition had never been filed. In the event
Lessor elects to terminate this Lease as provided for in this Section, Lessee
shall pay forthwith to Lessor as liquidated damages, the difference between the
unpaid rent reserved in this Lease at the time of such termination and the then
reasonable rental value of the Premises for the balance of the Lease Term, and
Lessee acknowledges that said sum is reasonable and shall not be construed as a
penalty.
14. DAMAGE AND CONDEMNATION.
14.1 In the event during the Lease Term the Premises are damaged by
fire or other casualty, but not to such an extent that repairs and rebuilding
cannot reasonably be completed within one hundred eighty (180) days of the date
of the event causing the damage, Lessor may, at Lessor's option, repair and
rebuild the Premises. If Lessor elects to repair and rebuild the Premises, this
Lease shall remain in full force and effect, but Lessor may require Lessee
temporarily to vacate the Premises while they are being repaired and, subject to
the provisions of this Paragraph 14.1, rent shall xxxxx during this period to
the extent that the Premises are untenantable; provided, however, that Lessor
shall not be liable to Lessee for any damage or expense which temporarily
vacating the Premises may cause Lessee. If the Premises are not repaired,
rebuilt, or otherwise made suitable for occupancy by Lessee within the aforesaid
one hundred eighty (180) day period, Lessee shall have the right, by written
notice to Lessor, to terminate this Lease, in which event rent shall be abated
for the unexpired Lease Term, effective as of the date of the written
notification, but the other terms and conditions of this Lease shall continue
and remain in full force and effect until Lessee shall have vacated the
Premises, removed all Lessee's personal property therefrom and delivered
peaceable possession thereof to Lessor. If Lessor elects not to repair and
rebuild the Premises or if the Building or any part thereof be so damaged that
repairs and rebuilding cannot reasonably be completed within one hundred eighty
(180) days of the date of the event causing the damage, Lessor may by written
notice to Lessee terminate this Lease in which event rent shall be abated for
the unexpired Lease Term, effective as of the date of the written notification,
but the other terms and conditions of this Lease shall continue and remain in
full force and effect until Lessee shall have vacated the Premises, removed all
Lessee's personal property therefrom and delivered peaceable possession thereof
to Lessor. Failure by Lessee to comply with any provision of this Paragraph 14.1
shall subject Lessee to such costs, expenses, damages, and losses as Lessor may
incur by reason of Lessee's breach hereof. Notwithstanding any provision of this
Lease to the contrary, if the Premises, the Building, or any part thereof are
damaged by fire or other casualty caused by or materially contributed to by the
negligence or misconduct of Lessee, Lessee shall be fully responsible, to the
extent not covered by insurance, for repairing, restoring, or paying for the
damage as Lessor shall direct and this Lease shall remain in full force and
effect without reduction or abatement of rent.
14.2 In the event the Building shall be taken, in whole or in part, by
condemnation or the exercise of the right of eminent domain, or if in lieu of
any formal condemnation proceedings or actions, if any, Lessor shall sell and
convey the Premises, or any portion thereof, to the governmental or other public
authority, agency, body, or public utility, seeking to take the Premises, the
Property or any portion thereof, then Lessor, at its option, may terminate this
Lease upon ten (10) days' prior written notice to Lessee and prepaid rent shall
be proportionately refunded from the date of possession by the condemn-
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ing authority. All damages awarded for the taking, or paid as the purchase price
for the sale and conveyance in lieu of formal condemnation proceedings, whether
for the fee or the leasehold interest, shall belong to and be the property of
Lessor; provided, however, Lessee shall have the sole right to reclaim and
recover from the condemning authority, but not from Lessor, such compensation as
may be separately awarded or recoverable by Lessee in Lessee's own right on
account of any and all costs or loss (including loss of business) to which
Lessee might be put in removing Lessee's merchandise, furniture, fixtures,
leasehold improvements, and equipment to a new location. Lessee shall execute
and deliver any instruments, at the expense of Lessor, that Lessor may deem
necessary to expedite any condemnation proceedings, to effectuate a proper
transfer of title to such governmental or other public authority, agency, body
or public utility seeking to take or acquire the lands and Premises, or any
portion thereof. Lessee shall vacate the Premises, remove all Lessee's personal
property therefrom and deliver up peaceable possession thereof to Lessor or to
such other party designated by Lessor in the aforementioned notice. Failure by
Lessee to comply with any provisions of this Paragraph 14.2 shall subject Lessee
to such costs, expenses, damages, and losses as Lessor may incur by reason of
Lessee's breach hereof. If Lessor chooses not to terminate this Lease, then to
the extent and availability of condemnation proceeds received by Lessor and
subject to the rights of any mortgagee thereto, Lessor shall, at the sole cost
and expense of Lessor and with due diligence and in a good and workmanlike
manner, restore and reconstruct the Premises within one hundred eighty (180)
days after the date of the physical taking, and such restoration and
reconstruction shall make the Premises reasonably tenantable and suitable for
the general use being made by Lessee prior to the taking; provided, however,
that Lessor shall have no obligation to restore and reconstruct Lessee's
leasehold improvements unless and to the extent that Lessor receives an award of
condemnation proceeds specifically designated as compensation for such
improvements. Notwithstanding the foregoing, if Lessor has not completed the
restoration and reconstruction within one hundred eighty (180) days after the
date of physical taking, Lessee, in addition to any other rights and remedies
Lessee may have, shall have the right to cancel this Lease. If this Lease
continues in effect after the physical taking, the rent payable hereunder shall
be equitably adjusted both during the period of restoration and reconstruction
and during the unexpired portion of the Lease Term. Lessee may make a separate
claim against the condemning authority so long as such claim does not diminish
Lessors claim.
14.3 In the event Lessor, during the Lease Term, shall be required by
any governmental authority or the order or decree of any court, to repair,
alter, remove, reconstruct, or improve (hereinafter collectively called
"Repairs") any part of the Premises, then the Repairs may be made by and at the
expense of Lessor and shall not in any way affect the obligations or covenants
of Lessee herein contained, and Lessee hereby waives all claims for damages or
abatement of rent because of the Repairs. If the Repairs shall render the
Premises untenantable and if the Repairs are not completed within one hundred
eighty (180) days after the date of the notice, requirement, order, or decree,
either party hereto upon written notice to the other party given not later than
one hundred ninety (190) days after the date of the notice, requirement, order,
or decree, may terminate this Lease, in which case rent shall be apportioned and
paid to the date the Premises were rendered untenantable; provided however that
where the requirement by a governmental authority having jurisdiction to repair,
alter, remove, reconstruct, or improve any part of the Premises arises out of
any act or omission by Lessee, then the Repairs shall be effected promptly at
the sole cost and expense of Lessee and there shall not, in any event, be any
abatement of rent nor any right in Lessee to terminate this Lease whether or not
the completion of the Repairs takes more than one hundred eighty (180) days.
15. TAXES.
15.1 Subject to Lessee's obligation to pay its Proportionate Share
thereof as a Shared Expense, Lessor shall pay all taxes, assessments and other
governmental charges, general or special, ordinary or extraordinary, foreseen or
unforeseen, including any installments thereof (herein called "Impositions"),
levied, assessed or otherwise imposed by any lawful authority or payable with
respect to the Land or the Building.
15.2 If at any time during the Lease Term the methods of taxation
prevailing at the Commencement Date shall be altered so that in lieu of, or as a
substitute for, the whole or any part of the taxes, assessments, levies,
impositions or charges now levied, assessed or imposed on real estate and the
improvements thereon, there shall be levied, assessed or imposed a tax,
assessment, levy, fee or other charge: (i) on or measured by the rents received
therefrom; (ii) measured by or based in whole or in part upon the Premises and
imposed upon Lessor; or (iii) measured by the rent payable by Lessee under this
Lease, then all such taxes, assessments, levies, impositions, charges or fees or
the part thereof so measured or based, shall be deemed to be included within the
definition of "Impositions". The tax, levy, or other imposition to which
reference is made hereinabove shall include sales, excise or similar taxes, but
shall not include any net income, franchise,
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estate or inheritance taxes imposed on Lessor.
15.3 In the event that a tax or assessment attributable to
environmental protection legislation, as distinguished from a tax or assessment
in the nature of a real estate property tax, is imposed upon Lessor by a
governmental authority having jurisdiction over the Land, which tax or
assessment is attributable to a portion of the Common Area being parking
facilities available to the Lessee, its servants, agents, employees, invitees,
licensees, contractors or subcontractors, such tax or assessment shall be
included within the definition of "Impositions".
16. LIABILITY OF LESSOR.
16.1 Subject to paragraph 9.5 hereof, Lessee shall indemnify, defend,
and hold harmless Lessor, at Lessee's expense, against (a) any default by Lessee
or permitted assignee or subtenant hereunder; (b) any act or negligence of
Lessee or any of the Lessee Parties; and (c) all claims for damages to persons
or property by reason of the use or occupancy of the Premises not caused by
Lessor. Lessee shall not be liable to Lessor, or Lessor's agents, servants,
employees, contractors, customers or invitees for any damage to person or
property caused by any act, omission or neglect of Lessor, its agents, servants
or employees. Moreover, Lessor shall not be liable for any damage, injury,
destruction, or theft to or of the Premises, the personal property of Lessee or
any of the Lessee Parties, Lessee, or any of the Lessee Parties arising from any
use or condition of the Premises, or any sidewalks, entranceways, or parking
areas serving the Premises, or the act or neglect of co-tenants or any other
person, or the malfunction of any equipment or apparatus serving the Premises,
or any loss thereof by mysterious disappearance or otherwise. Any and all claims
against Lessor for any damage referred to in this Section 16 are hereby waived
and released by Lessee.
16.2 Lessee expressly agrees to look solely to Lessor's interest in the
Property for the recovery of any judgment against Lessor, it being agreed that
Lessor (and its partners and shareholders) shall never be personally liable for
any such judgment. The provision contained in the foregoing sentence is not
intended to, and shall not, limit any right that Lessee might otherwise have to
obtain injunctive relief against Lessor or Lessor's successors-in-interest.
16.3 Subject to paragraph 9.5 hereof, Lessor shall indemnify, defend,
and hold harmless Lessee, at Lessor's expense, against (a) any default by Lessor
hereunder; (b) any negligence of Lessor or any of the Lessor Parties; and (c)
all claims for damages to persons or property by reason of the use or occupancy
of the Premises caused by Lessor. Lessor shall not be liable to Lessee, or
Lessee's agents, servants, employees, contractors, customers or invitees for any
damage to person or property caused by any act, omission or neglect of Lessee,
its agents, servants, contractors or employees.
17. RIGHT OF ENTRY.
17.1 Lessor reserves the right, for itself, its mortgagees, or their
respective agents and duly authorized representatives, to enter and be upon the
Premises at any reasonable time with prior notice unless an emergency and from
time to time to inspect the Premises and to repair, maintain, alter, improve,
and remodel, but Lessor shall not materially interfere with Lessee's normal
operation except in case of an emergency. Lessee shall not be entitled to any
compensation, damages, or abatement or reduction in rent on account of any such
repairs, maintenance, alterations, improvements or remodeling. Except as
otherwise provided in this Lease, nothing contained in this Paragraph 17.1 shall
imply any duty on the part of Lessor to repair, maintain, alter, improve, or
remodel.
17.2 After notice to Lessee, Lessee shall permit Lessor or Lessor's
agents at any reasonable hour of the day to enter into or upon and go through
and view the Premises and to exhibit the Premises to prospective purchasers
(with reasonable notice) or tenants within the last six (6) months of the Lease
Term.
18. BUILDING RULES AND REGULATIONS. Lessor reserves the right to establish
reasonable rules and regulations pertaining to the use and occupancy of the
Building, which rules and regulations may be changed by Lessor from time to
time. Lessee shall comply with any rules and regulations established by Lessor
pursuant to this Section 18. See EXHIBIT "D". Such building rules and
regulations will be uniformly enforced.
19. PROPERTY LEFT ON THE PREMISES. Upon the expiration of this Lease, or if
the Premises should be abandoned by Lessee, or if this Lease should terminate
for any cause, or if Lessee should be dispossessed after default,
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if at the time of any such expiration, abandonment, termination or
dispossession, Lessee or its assignees, subtenants, agents, servants, employees,
contractors, or any other person controlled by Lessee or claiming under Lessee
should leave any property of any kind or character in or upon the Premises, such
property shall be the property of Lessor and the fact of such leaving of
property in or upon the Premises shall be conclusive evidence of the intent by
Lessee or such person to abandon such property so left in or upon the Premises,
and such leaving shall constitute abandonment of the property. It is understood
and acknowledged by the parties hereto that none of Lessor's servants, agents or
employees, have or shall have the actual or apparent authority to waive any
portion of this Section 19, and neither Lessee nor any other person designated
above shall have any right to leave any such property upon the Premises beyond
the time set forth herein without the written consent of Lessor. Lessor, its
agents or attorneys, shall have the right and authority without notice to Lessee
or anyone else, to remove and destroy, store, sell or otherwise dispose of, such
property, or any part thereof, without being in any way liable to Lessee or
anyone else therefor. Lessee shall be liable to Lessor for all reasonable and
necessary expenses incurred in such removal and destruction, storage, sale or
other disposition of such property. The said property removed or the proceeds
from the sale or other disposition thereof shall belong to the Lessor as
compensation for the removal and disposition of said property.
20. OTHER INTERESTS.
20.1 This Lease and Lessee's interest hereunder shall at all times be
subject and subordinate to the lien and security title of any deeds to secure
debt, deeds of trust, mortgages, or other interests heretofore or hereafter
granted by Lessor or which otherwise encumber or affect the Premises and to any
and all advances to be made thereunder and to all renewals, modifications,
consolidations, replacements, substitutions, and extensions thereof (all of
which are hereinafter called the "Mortgage"). This clause shall be
self-operative and no further instrument of subordination need be required by
any holder of any Mortgage. In confirmation of such subordination, however,
Lessee shall, at Lessor's request, promptly execute, acknowledge, and deliver
any instrument which may be required to evidence subordination to any Mortgage
and, to the holder thereof. Lessee hereby waives and releases any claim it might
have against Lessor or any other party for any actions lawfully taken by the
holder of any Mortgage.
20.2 In the event of a sale or conveyance by Lessor of Lessor's
interest in the Premises other than a transfer for security purposes only,
Lessor shall be relieved, from and after the date of transfer, of all
obligations and liabilities accruing thereafter on the part of Lessor, provided
that any funds in the hands of Lessor at the time of transfer in which Lessee
has an interest shall be delivered to the successor of Lessor. This Lease shall
not be affected by any such sale and Lessee shall attorn to the purchaser or
assignee.
21. INTENTIONALLY DELETED
22. DELAYED POSSESSION. If Lessor shall fail to deliver to Lessee actual
possession of the Premises by February 1, 1999, rent shall xxxxx until
possession is given, but Lessor shall not be liable to Lessee for such failure,
and the Commencement Date shall become the date on which possession is given.
The Lease will be voidable by Lessee if improvements are not completed by April
1, 1999 if such delay is not caused by Lessee.
23. HOLDING OVER. There shall be no renewal, extension, or reinstatement of
this Lease by operation of law. In the event of holding over by Lessee after the
expiration or sooner termination of this Lease, with Lessor's acquiescence and
without any express agreement of the parties, Lessee shall be a tenant at
sufferance and all of the terms, covenants, and conditions of this Lease shall
be applicable during that period, except that Lessee shall pay Lessor as Base
Rent for the period of the hold over an amount equal to one and one-half times
the Base Rent which would have been payable by Lessee under Paragraph 2.1
hereof, as adjusted in accordance with paragraph 3.1 hereof, had the hold-over
period been part of the original Lease Term, together with all additional rent
due hereunder and together with any other Amount Due under this Lease. The rent
payable by Lessee during the hold-over period shall be payable to Lessor on
demand. If Lessee holds over as a tenant at sufferance, Lessee shall vacate and
deliver the Premises to Lessor upon demand. In the event Lessee fails to
surrender the Premises to Lessor upon expiration or other termination of this
Lease or of such tenancy at sufferance, then Lessee shall indemnify Lessor
against any and all loss or liability resulting from any delay of Lessee in
surrendering the Premises, including, but not limited to, any amounts required
to be paid to third parties who were to have occupied the Premises and any
attorneys' fees related thereto.
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24. NO WAIVER. Lessee understands and acknowledges that no assent, express
or implied, by Lessor to any breach of any one or more of the terms, covenants
or conditions hereof shall be deemed or taken to be a waiver of any succeeding
or other breach, whether of the same or any other term, covenant or condition
hereof.
25. BINDING EFFECT. All terms and provisions of this Lease shall be binding
upon and apply to the successors, permitted assigns, and legal representatives
of Lessor and Lessee or any person claiming by, through, or under either of them
or their agents or attorneys, subject always, as to Lessee, to the restrictions
contained in Section 11 hereof.
26. COMPLIANCE WITH PROTECTIVE COVENANTS. In addition to and without in any
way limiting any of the other provisions of this Lease, Lessee shall comply with
any protective covenants now or hereafter of record against the Building or the
Property and with any changes to the covenants duly adopted. It is expressly
acknowledged that all uses of the Building and Premises are subject to the
covenants, conditions and restrictions of Technology Park filed at Deed Book
389, Page 636, Gwinnett, Georgia, records, as amended and extended.
27. SIGNS. Lessee shall not install, paint, display, inscribe, place, or
affix any sign, picture, advertisement, notice, lettering, or direction
(hereinafter collectively called "Signs") on the exterior of the Premises, the
Common Areas of the Building, the interior surface of glass and any other
location which could be visible from outside of the Premises without first
securing written consent from Lessor therefor. Any Sign permitted by Lessor
shall at all times conform with all municipal ordinances or other laws,
regulations, deed restrictions, and protective covenants applicable thereto.
Lessee shall remove all Signs at the expiration or other termination of this
Lease, at Lessee's sole risk and expense, and shall in a good and workmanlike
manner properly repair any damage caused by the installation, existence, or
removal of Lessee's Signs. Lessee shall have the right to have its name placed
upon the building monument sign that is shared with other Lessees of the
building.
28. INTENTIONALLY DELETED
29. ESTOPPEL CERTIFICATE. Lessor and Lessee shall, at any time and from
time to time, upon not less than ten (10) days' prior written notice from the
other party, execute, acknowledge, and deliver to the other a statement in
writing certifying that this Lease is unmodified and in full force and effect
(or if modified, stating the nature of the modification and certifying that this
Lease, as so modified, is in full force and effect) and the dates to which the
rent and other charges are paid, and acknowledging, if true, that Lessee is
paying rent on a current basis with no offsets or claims, and that there are
not, to such party's knowledge, any uncured defaults on the part of the other
hereunder (or specifying the offsets, claims, or defaults, if any are claimed),
and such other information (including but not limited to the most recent
financial statements) reasonably required the requesting party. It is expressly
understood and acknowledged that any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the Property or
the requesting party or by any other person to whom it is addressed.
30. SEVERABILITY. The terms, conditions, covenants, and provisions of this
Lease shall be deemed to be severable. If any clause or provision herein
contained shall be adjudged to be invalid or unenforceable by a court of
competent jurisdiction or by operation of any applicable law, it shall not
affect the validity of any other clause or provision herein, but the other
clauses or provisions shall remain in full force and effect.
31. ENTIRE AGREEMENT. Lessee acknowledges that there are no covenants,
representations, warranties, or conditions, express or implied, collateral or
otherwise, forming part of or in any way affecting or relating to this Lease
save as expressly set out in this Lease and that this Lease together with the
Exhibits attached hereto constitutes the entire agreement between the parties
hereto and may not be modified except as herein explicitly provided or except by
subsequent agreement in writing of equal formality hereto executed by Lessor and
Lessee.
32. CUMULATIVE REMEDIES. In the event of any default, breach, or threatened
breach by Lessee of any of the covenants or provisions hereto, Lessor shall, in
addition to all other remedies as provided by this Lease, have the right of
injunction and/or damages and the right to invoke any remedy allowed at law or
in equity, and may have any one or more of the remedies contemporaneously. The
various rights, remedies, powers, options, and elections of Lessor reserved,
expressed, or contained in this Lease are cumulative and no one of them shall be
deemed to be exclusive of the others, or of such other rights, remedies, powers,
options, or elections as are now, or may hereafter, be conferred upon Lessor by
law.
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33. PARKING AREAS AND COMMON AREA CONTROL.
33.1 Lessee acknowledges and agrees that the common areas of the Building
including, without limiting the generality of the foregoing, lawns, gardens,
parking areas, sidewalks, driveways, foyers, hallways, washrooms, and stairwells
not within the Premises shall at all times be subject to the exclusive control
and management of Lessor. Lessor shall have the right to change the area, level,
location, and arrangement of common areas so long as in so doing Lessor does not
materially and adversely affect ingress to and egress from the Building or the
Premises. Lessee shall be entitled to 4.50 parking spaces per 1,000 rentable
square feet leased and such parking is at no charge.
33.2 Lessee and the Lessee Parties shall not use more than Lessee's
proportionate share of the parking spaces in the parking areas made available to
the Building by Lessor. Lessee covenants and agrees to fully cooperate with
Lessor in the enforcement of any program of rules and regulations designed for
the orderly control and operation of parking areas.
34. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given when delivered in person or when
deposited in the United States mail, return receipt requested, addressed to the
parties at the respective addresses set out below:
If to Lessee: Prior to the Commencement Date: Fundtech Ltd.
0000 Xxxxxxxx
Xxxxx Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Senior Vice President
After the Commencement Date: Fundtech Ltd.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Senior Vice President
If to Lessor: c/o Technology Park/Atlanta, Inc.
Suite 150
11555 Xxxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Attention: President
or to such other addresses as the parties may direct from time to time by thirty
(30) days' written notice. However, the time period in which a response to any
notice, demand, or request must be given, if any, shall commence to run from the
date of receipt of the notice, demand, or request by the addressee thereof.
Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to be receipt of
the notice, demand, or request sent. Lessee hereby appoints as its agent to
receive service of all dispossessory or distraint proceedings and notices in
connection therewith, the person in charge of or occupying the Premises at the
time; and if no person is in charge of or occupying the Premises, then the
service or notice may be made by attaching it on the main entrance to the
Premises and on the same day enclosing, directing, stamping, and marking by
first class mail a copy of the service or notice to Lessee at the last known
address of Lessee.
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35. RECORDING. Neither this Lease nor any portion hereof shall be recorded
unless both parties hereto agree to the recording.
36. ATTORNEYS' FEES. The prevailing party agrees to pay the other's
reasonable attorneys' fees, collection costs, and other costs and expenses which
Lessor or Lessee incurs in enforcing any of the obligations of Lessee or Lessor
under this Lease.
37. HOMESTEAD. Lessee waives all homestead rights and exemptions which it
may have under any law as against any obligations owing under this Lease. Lessee
hereby assigns to Lessor its homestead right and exemption.
38. TIME OF ESSENCE. Time is of the essence of this Lease.
39. NO ESTATE IN LAND. This Lease shall create the relationship of landlord
and tenant between Lessor and Lessee, and nothing contained herein shall be
deemed or construed by the parties hereto, or by any third party, as creating
the relationship of principal and agent, or of partnership, or of joint venture,
or of any relationship other than landlord and tenant, between the parties
hereto. No estate shall pass out of Lessor and Lessee has only a usufruct not
subject to levy and sale.
40. ACCORD AND SATISFACTION. No payment by Lessee or receipt by Lessor of a
lesser amount than the Base Rent, additional rent, or any other Amount Due
herein stipulated shall be deemed to be other than on account of the earliest of
such amount then due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Lessor may accept the check or payment without prejudice to
Lessor's right to recover the balance of the rent or pursue any other remedy
provided in this Lease.
41. BROKERS' FEES. With the exception of Technology Park/Atlanta, Inc.,
broker representing Lessor and C. B. Xxxxxxx Xxxxx, Inc., broker representing
Lessee; Lessor and Lessee warrant and represent, each to the other, that it has
had no dealings with any broker or agent in connection with this Lease, and
Lessor and Lessee hereby indemnify each other against, and agree to hold each
other harmless from, any liability or claim (and all expenses, including
attorneys' fees, incurred in defending any such claim or in enforcing this
indemnity) for a real estate brokerage commission or similar fee or compensation
arising out of or in any way connected with any claimed dealings with the
indemnitor and relating to this Lease or the negotiation thereof.
42. MISCELLANEOUS.
42.1 Words of any gender used in this Lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural unless the context otherwise requires.
42.2 The captions are inserted in this Lease for convenience only, and
in no way define, limit, or describe the scope or intent of this Lease, or of
any provision hereof, nor in any way affect the interpretation of this Lease.
42.3 This Lease is made and delivered in the State of Georgia and shall
be governed by and construed in accordance with the laws of the State of
Georgia.
For additional terms and stipulations of this Lease, if any, see
EXHIBIT "E", attached hereto and by this reference incorporated herein.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
LESSOR: TECHNOLOGY PARK/ATLANTA, INC.
a Georgia Corporation
BY: /s/ Xxxxxxx X. X'Xxxxx
--------------------------
NAME: Xxxxxxx X. X'Xxxxx
------------------------
TITLE: President
------------------------
[Corporate Seal]
LESSEE: FUNDTECH, LTD.
BY: /s/ Xxxxxxx Xxxxx
--------------------------
NAME: Xxxxxxx Xxxxx
------------------------
TITLE: Chief Financial Officer
-----------------------
ATTEST: /s/ Xxxx Xxxxxxxxx
-----------------------
NAME: Xxxx Xxxxxxxxx
------------------------
TITLE: Senior Vice President
-----------------------
[Corporate Seal]
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SCHEDULE OF EXHIBITS
EXHIBIT "A" Legal Description
EXHIBIT "B" Outline of Premises
EXHIBIT "C" General Plans
EXHIBIT "D" Rules and Regulations
EXHIBIT "E" Special Stipulations
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EXHIBIT D
RULES AND REGULATIONS
1. As part of the initial improvements to the Premises, Lessor agrees to
furnish Lessee two keys for each keyed door located within the Premises
without charge. If the Building entrance and/or the primary entrance to
the Premises is accessed with either a pass key or key card, Lessor
agrees to furnish Lessee two pass keys or key cards (as the case may
be) per 1,000 square feet of leased space. Any additional pass keys or
key cards required by Lessee must be obtained from Lessor at a
reasonable cost to be established by Lessor. Lessee shall not alter any
lock or install any new or additional locks or bolts on any doors or
windows of the Premises without obtaining Lessor's prior written
consent. All keys and key cards to Premises shall be surrendered to
Lessor upon termination of this Lease.
2. All contractors and installation technicians shall comply with Lessor's
rules and regulations pertaining to construction and installation. This
provision shall apply to all work performed on or about the Premises,
Building, or Property, including installation of telephones, computer
wiring, electrical devices and attachments, and installations of any
nature affecting floors, walls, woodwork, trim, windows, ceilings, and
equipment, or any other physical portion of the Premises, Building, or
Property.
3. No signaling or telephonic devices, including antennae and satellite
dishes, or other wires, cabling and instruments or devices shall be
installed in connection with the Premises, Building, or Property
without the prior written consent of Lessor. No advertising banners or
balloons or any other items which require fastening to the Premises,
Building, or Property are permitted without prior written consent from
Lessor. Mechanical equipment, utility meters, and/or storage tanks will
not be placed in or on the Premises, Building, or Property without
Lessor's prior written approval.
4. Lessee shall not overload the floor of the Premises; safes and other
heavy articles shall be placed by Lessee only in such manner as may be
specified in writing by Lessor, and any damage done to the Building or
Premises from overloading a floor, or injury to persons in moving safes
or other heavy articles in or out of the Building or Premises, shall be
paid for by the Lessee.
5. All moving activity into or out of the Building must be scheduled with
the Lessor, and shall be under supervision of Lessor and carried out in
a manner that shall comply with Lessor's Rules and Regulations. Lessee
assumes, and shall indemnify Lessor against all loss, liability, cost,
expense, risk or claim of damage or injury to persons and properties
arising in connection with any said movement.
6. Lessee shall not place or use in or about the Premises, the Building,
or the Property, any product causing objectionable odors such as but
not limited to furniture refinish material, strong cleaners, gasoline,
kerosene, oil, acids, caustics, or any flammable explosive, or
hazardous material without the prior written consent of Lessor.
7. Lessee shall not use any method of heating or air-conditioning, other
than that supplied by Lessor, without Lessor's prior written consent.
Space heaters are an electrical fire hazard, and are not to be used in
Lessee's Premises.
8. No cooking shall be done or permitted on the Premises, except that
Underwriters' Laboratory (UL)-approved equipment and microwave ovens
may be used in the Premises for heating food and brewing coffee, tea,
hot chocolate, and similar beverages for employees and visitors. This
use must be in accordance with all applicable federal, state, and city
laws, ordinances, rules, and regulations. Lessee shall not use outdoor
grills or cooking equipment, nor place picnic tables, tents, sports
equipment, etc. in or about the Premises, without prior written
approval from Landlord.
9. Lessee shall not, at any time, occupy any part of the Premises, the
Building, or the Property as sleeping or lodging quarters.
10. No dogs, cats, fowl or other animals shall be brought into, or kept in
or about the Premises, the Building, or the Property, except for those
animals utilized to assist any persons with disabilities. Lessor should
be notified in advance, and in writing, if any such animals will be
utilized on a regular basis.
11. No Lessee, or their employees or invitee's, shall disturb occupants of
the Building or the Property by the use of any radios, tape or cd
players, or other musical instruments, or the making of objectionable
noises by any unreasonable use.
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Office parties and functions should be limited to Lessee's Premises.
(Catering services shall use service entrance and service elevator for
deliveries.)
12. All canvassing, soliciting, and peddling in or about the Premises, the
Building, or the Property is prohibited. Lessee, Lessee's employees,
and Lessee's agents shall not loiter in or on the entrances, corridors,
sidewalks, lobbies, halls, stairways, elevators, or common areas, or
disturb, solicit, or canvas any occupant of the Premises, the Building,
or the Property. Lessor reserves the right to exclude or expel from the
Property any person who, in Lessor's reasonable judgment, is under the
influence of alcohol or drugs, or commits any act in violation of any
of these Rules and Regulations.
13. The restrooms, urinals, wash bowls, and other apparatus shall not be
used for any purpose other than that for which they were constructed,
and no foreign substance of any kind shall be thrown or poured into
them. The expense of any breakage, stoppage, or damage resulting from
violation of this rule shall be borne by the Lessee who caused, or
whose employees, agents, contractors, invitee's, or licences caused the
breakage, stoppage, or damage.
14. None of the parking, plaza, recreation, or lawn areas, entries,
passages, doors, elevators, hallways, or stairways shall be blocked or
obstructed; nor shall any rubbish, litter, trash or material of any
nature be placed, emptied or thrown into these areas; nor shall these
areas be used by Lessee's agents, employees, and/or invitee's at any
time for purposes which are inconsistent with their designation by
Lessor.
15. No signs of any type or description shall be erected, placed, or
painted in or about the doors and windows, the building, or the grounds
of the project or right-of-way of which the Premises are a part except
those signs submitted to Lessor in writing and approved by Lessor in
writing and which signs are in conformance with the park's protective
covenants. No covers or awnings over or outside of the windows nor
draperies or coverings hung inside the windows will be permitted
without Lessor's prior written approval.
16. Lessee and its employees, agents, and invitee's shall park their
vehicles only in those parking areas designated by Lessor and entirely
within the lines. All directional signs, arrows, and posted speed
limits must be observed. Bicycles, motorcycles or other mobile devices
shall not be allowed or placed anywhere on the Property or in the
Building, except for in those areas so designated. Parking is
prohibited in areas not striped for parking, in aisles where "No
Parking" signs are posted, on ramps, in crosshatched areas, and in
other areas as may be designated by Lessor.
17. Lessee and its employees, agents, and invitee's shall not leave any
vehicle in a state of disrepair (including, without limitation, flat
tires, oil or damaging fluid leaks, out-of-date inspection stickers or
license plates) on the Property. If Lessee or its employees, agents or
invitee's park their vehicles in areas other than the designated
parking areas or leave any vehicle in a state of disrepair, Lessor,
after ticketing vehicle in violation, shall have the right to remove
such vehicle at its owner's expense. No vehicle maintenance will be
done on the Property without prior written consent of Lessor.
18. Lessee and its employees, agents, and invitee's shall park their
vehicles in compliance with all parking rules and regulations,
including any sticker or other identification system established by
Lessor. Parking stickers or other forms of identification supplied by
Lessor shall remain the property of Lessor and are not transferrable.
Vehicles should be kept locked; any damage to vehicles or persons is
assumed by the vehicle's owner or its driver.
19. Employees of Lessor shall not be responsible to carry messages from or
to Lessee. Nor shall employees of Lessor contract with, or render free
or paid service to any Lessee or to any of Lessee's agents, employees,
or invitee's which service is not covered in this Lease, without prior
written notice to Lessor.
20. Lessee shall comply with all safety, fire protection, and evacuation
procedures and regulations established by Lessor or by any government
agency. All Christmas trees placed in the Lessee's Premises must be
fire-resistant artificial trees. Any lighting attached to trees or
decorations must be UL approved and designated for the purpose being
used. Installation of any decorations that could be deemed potential
fire hazards requires prior written approval of Lessor. Decorations
outside of Lessee's Premises would also require prior Lessor approval.
21. Lessor reserves the right at any time to change or rescind any one or
more of these Rules and Regulations or to
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make any additional reasonable Rules and Regulations that, in Lessor's
judgement, may be necessary for:
a. The management, safety, care, and cleanliness of the Premises,
Building, and Property.
b. The preservation of good; and
c. The convenience of other occupants and tenants in the Premises,
Building, and Property.
Lessor may waive any one or more of these Rules and Regulations for the benefit
of any particular tenants. No waiver by Lessor shall be construed as a waiver of
those Rules and Regulations in favor of any other tenant, and no waiver shall
prevent Lessor from enforcing those rules and Regulations against any other
tenant of the Property. Lessee shall be considered to have read these Rules and
Regulations and to have agreed to abide by them as a condition of Lessee's
occupancy of the Premises.
EXHIBIT "E"
SPECIAL STIPULATIONS
RENEWAL OPTION
So long as this Lease is in full force and effect and so long as Lessee
is not then in default beyond any cure period under this Lease, Lessor hereby
grants Lessee an option to extend the Original Lease Term for one (1) additional
period of five (5) years by giving written notice to Lessor not more than nine
(9) months nor less than six (6) months prior to the expiration of the original
Lease Term or the expiration of the first extension term, as the case may be.
Except as otherwise provided herein, the Annual Base Rental during each
of the extension terms will be the Fair Market Rental Value (as defined below)
of the Premises as of the respective commencement date of each extension term
prevailing for similar quality renewal or extension office space located in the
Xxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx submarket.
The "Fair Market Rental Value" of the Premises means the base rental
that would be agreed to by a lessor and a lessee, each of whom is willing, but
neither of whom is compelled, to enter into a lease renewal or extension
transaction, and not taking into account any special tenant improvements,
allowances, rent credits or any special uses or rights afforded to Lessee under
the Lease in connection with the Premises, but shall take into account the
following factors:
i. Rental for comparable renewal or extension premises in
comparable existing buildings (taking into consideration, but
not limited to, use, location and floor level within the
applicable building, definition of net rentable area, quality,
age and location of the comparable buildings);
ii. The rentable area of the premises being leased;
iii. The comparable renewal or extension premises shall not be
sublease space and not subject to another tenant's expansion
rights;
iv. The length of the pertinent rental term; and
v. The quality and creditworthiness of the Lessee.
If the Lessor and Lessee cannot agree upon the Fair Market Rental Value within
six (6) months prior to the expiration of the Original Lease Term, then Lessee
may either (a) rescind its exercise of the applicable extension option, or (b)
cause three (3) appraisers (selected according to the provisions of the American
Arbitration Association with MAI designations and a minimum of ten (10) years
experience in the Atlanta office market) to determine the Fair Market Rental
Value. The Fair Market Rental Value as agreed between the parties or as
determined through arbitration shall be binding upon the parties. The cost of
any arbitration shall be shared equally by Lessor and Lessee.
There shall be no further extensions or renewals of the Lease Term,
except as expressly agreed to by the parties hereto in writing.
Lessor shall have no obligation in the extended Lease Term to pay any
building allowances, design allowances or similar items, to Lessee.
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RIGHT OF FIRST REFUSAL.
So long as this Lease remains in force and Lessee is not then in
default under this Lease, if on or before Lessor receives a bona fide written
offer (hereinafter called the "Refusal Lease Offer") to lease any of the
contiguous portion of the Building to Lessee (hereinafter called the "Refusal
Space") on terms and conditions acceptable to Lessor, then Lessor shall give
Lessee written notice of the Refusal Lease Offer setting forth the terms and
conditions thereof within ten (10) days of Lessor's receipt of such Refusal
Lease Offer. Lessee shall have and Lessor hereby grants to Lessee a first right
of refusal, exercisable at any time within five (5) days from the date of
delivery by Lessor to Lessee of such notice, to include the Refusal Space within
the Premises and under this Lease upon all of the terms and conditions set forth
in the applicable Refusal Lease Offer subject to the last sentence of this
Section. Lessee may elect to exercise its first right of refusal only by
delivery of written notice of exercise to Lessor prior to the end of such five
(5) day period. Lessee shall use its good faith and reasonable efforts to
respond in as short a time period as the circumstances dictate. Notwithstanding
anything to the contrary herein, if Lessee elects timely to include such Refusal
Space as a part of the Premises, then Lessee shall lease the Refusal Space for
the remainder of the Lease Term on the terms contained in the bona fide offer,
subject only to the terms contained herein with regard to any extensions of the
term of this Lease.
Notwithstanding anything to the contrary in this Section 43, Lessee is
not entitled to exercise such first right of refusal unless Lessee is not in
default under this Lease.
Lessee may not assign its first right of refusal under this Section
except to a Lessor-approved or deemed approved (which approval shall not be
unreasonably withheld, delayed or conditioned) sublessee or assignee of all of
Lessee's rights under this Lease and then only in conjunction with an assignment
of this Lease.
The Refusal Space will be provided to Lessee in its then existing
condition.
Lessee's obligation to pay the Annual Base Rental and Base Rent for
such space shall commence on the earlier of (i) the commencement date provided
for in the Refusal Lease Offer, or (ii) the date Lessee occupies any portion of
such Refusal Space (not as a part of the build out, but for the purpose of
operating for business).
