Exhibit 10.36
CUMBERLAND OFFICE PARK
LEASE AGREEMENT
BY AND BETWEEN
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.
AND
XXXXXXX CENTRAL HOLDINGS, INC.
January 16, 2001
TABLE OF CONTENTS
Page
----
ARTICLE 1
BASIC LEASE INFORMATION AND CERTAIN DEFINITIONS.......................1
ARTICLE 2
PREMISES AND QUIET ENJOYMENT..........................................2
ARTICLE 3
TERM; COMMENCEMENT DATE; DELIVERY AND ACCEPTANCE OF PREMISES..........2
ARTICLE 4
RENT..................................................................3
ARTICLE 5
OPERATING COSTS.......................................................4
ARTICLE 6
PARKING...............................................................6
ARTICLE 7
SERVICES OF LANDLORD..................................................6
ARTICLE 8
ASSIGNMENT AND SUBLETTING.............................................7
ARTICLE 9
REPAIRS...............................................................9
ARTICLE 10
ALTERATIONS..........................................................10
ARTICLE 11
LIENS................................................................11
ARTICLE 12
USE AND COMPLIANCE WITH LAWS.........................................11
ARTICLE 13
DEFAULT AND REMEDIES.................................................12
ARTICLE 14
INSURANCE............................................................13
ARTICLE 15
DAMAGE BY FIRE OR OTHER CAUSE........................................14
ARTICLE 16
CONDEMNATION.........................................................15
ARTICLE 17
INDEMNIFICATION......................................................16
ARTICLE 18
SUBORDINATION AND ESTOPPEL CERTIFICATES..............................16
ARTICLE 19
SURRENDER OF THE PREMISES............................................17
ARTICLE 20
LANDLORD'S RIGHT TO INSPECT..........................................18
ARTICLE 21
SECURITY DEPOSIT.....................................................18
ARTICLE 22
BROKERAGE............................................................18
i
ARTICLE 23
OBSERVANCE OF RULES AND REGULATIONS..................................18
ARTICLE 24
NOTICES..............................................................18
ARTICLE 25
MISCELLANEOUS........................................................19
ARTICLE 26
SUBSTITUTION SPACE...................................................21
ARTICLE 27
OTHER DEFINITIONS....................................................23
ii
The following Exhibits and Riders are attached hereto and by this reference
made a part of this Lease:
EXHIBIT A - FLOOR PLAN OF THE PREMISES
EXHIBIT B - THE LAND
EXHIBIT C - LEASEHOLD IMPROVEMENTS
EXHIBIT D - FORM OF COMMENCEMENT NOTICE
RIDER NO. 1 - RULES AND REGULATIONS
RIDER NO. 2 - SPECIAL STIPULATIONS
iii
INDEX OF DEFINED TERMS
Definitions of certain terms used in this Lease are found in the following
sections:
TERM LOCATION OF DEFINITION
Additional Rent Section 1.1N
Adjustment Date(s) Section 4.3
Bankruptcy Code Section 8.6
Base Building Condition Exhibit C
Base Index Section 4.3
Base Rent Section 1.2M
Base Year Operating Costs Section 1.1O
Basic Lease Information and Certain Definitions Article 1
Broker Section 1.1R
Building Section 1.1B
Building Standard Exhibit C
Business Days Article 27
Commencement Date Section 1.1F
Common Areas Article 27
days Article 27
Events of Default Section 13.1
Expiration Date Section 1.1G
herein, hereof, hereby, hereunder and words
of similar import Article 27
include and including Article 27
Interest Rate Section 4.2
Land Section 1.1C
Landlord Preamble
Landlord's Address for Notice Section 1.1S
Landlord's Address for Payment Section 1.1T
Landlord's Operating Costs Estimate Section 5.1
Landlord's Work Exhibit C
Leasehold Improvements Exhibit C
Lease Year Section 4.3
Net Rentable Area Article 27
Net Rentable Area of the Building Section 1.1J
Net Rentable Area of the Premises Section 1.1I
Non-Building Standard Exhibit C
Office Park Section 2.1
Operating Costs Section 5.2
Parking Facilities Section 1.1D
Project Section 1.1E
Premises Section 1.1A
Reference to Landlord as having "no liability
to Tenant" or being "without liability to
Tenant" or words of like import Article 27
Rent Section 1.1L
repair Article 27
Security Deposit Section 1.1Q
Substitution Space Article 26
Successor Landlord Section 18.2
Taxes Section 5.2
Tenant Preamble & Article 27
Tenant Delay Exhibit C
Tenant's Address for Notice Section 1.1U
Tenant's Allowance Exhibit C
Tenant's Parking Permits Section 6.1
Tenant's Permitted Uses Section 1.1P
Tenant's Property Section 14.1A(a)
Tenant's Share Section 1.1K
Tenant's Work Exhibit C
Term Section 1.1H
termination of this Lease and words of like import Article 27
terms of this Lease Article 27
this Lease Preamble
Usable Area of Premises Exhibit C
year Article 27
iv
LEASE AGREEMENT
THIS LEASE AGREEMENT ("this Lease") is made and entered into by and between
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P., a Delaware limited partnership
("Landlord") and XXXXXXX CENTRAL HOLDINGS, INC., a Delaware corporation
("Tenant"), upon all the terms set forth in this Lease and in all Exhibits and
Riders hereto, to each and all of which terms Landlord and Tenant hereby
mutually agree, and in consideration of One Dollar ($1.00) and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
of the rents, agreements and benefits flowing between the parties hereto, as
follows:
ARTICLE 1
BASIC LEASE INFORMATION AND CERTAIN DEFINITIONS
SECTION 1.1 Each reference in this Lease to information and definitions
contained in the Basic Lease Information and Certain Definitions and each use of
the terms capitalized and defined in this Section 1.1 shall be deemed to refer
to, and shall have the respective meaning set forth in, this Section 1.1.
A. Premises: The portion of the third (3rd) floor of
the Building, presently known as Suite
No. 310, as said space is identified by
diagonal lines or shaded area on the
floor plans attached hereto as Exhibit
A.
B. Building: The building constructed by Landlord on
a portion of the Land, said building
being known as 0000 Xxxxxxxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxx 00000.
C. Land: Those certain parcels of land described
under the caption "Land" in Exhibit B
hereof.
D. Parking Facilities: The surface parking which is adjacent to
the Building.
E. Project: The Land and all improvements thereon,
including the Building, the Parking
Facilities, and all Common Areas.
F. Commencement Date: That certain date on which the Term
shall commence, as determined pursuant
to the provisions of Article 3 hereof.
G. Expiration Date: 11:59 p.m. on that date which follows
the Commencement Date by thirty-six (36)
months.
H. Term: Approximately three (3) years, beginning
on the Commencement Date and ending on
the Expiration Date, unless this Lease
is sooner terminated as provided herein.
I. Net Rentable Area of Premises: Approximately 12,431 square feet,
subject to the provisions of Section 3.3
hereof.
J. Net Rentable Area of the Building: Approximately 78,317 square feet,
subject to the provisions of Section 3.3
hereof.
K. Tenant's Share: 15.873% representing a fraction, the
numerator of which is the Net Rentable
Area of the Premises and the denominator
of which is the Net Rentable Area of the
Building, subject to future adjustment
pursuant to the provisions of Section
5.4 hereof.
L. Rent: The Base Rent and the Additional Rent.
M. Base Rent: The Base Rent shall be $211,327.00 per
annum ($17.00 per square foot per annum
of Net Rentable Area of the Premises),
subject to such increases as may be
provided herein, payable in equal
monthly installments of $17,610.58,
subject to such increases as may be
provided herein.
N. Additional Rent: The Additional Rent shall be all other
sums due and payable by Tenant under the
Lease, including, but not limited to,
Tenant's Share of Operating Costs.
O. Base Year Operating Costs: The Base Year Operating Costs for the
first full or partial year of the Term
shall be the actual Operating Costs for
calendar year 2001.
1
P. Tenant's Permitted Uses: Tenant may use the Premises only for
executive and administrative offices for
the conduct of Tenant's business in
accordance with the provisions of this
Lease.
Q. Security Deposit: $52,831.75.
R. Brokers: Xxxxxxxx Properties Limited,
representing Landlord. Xxxxxxxx &
Company, representing Tenant.
S. Landlord's Address for Notice: Xxxxxxxx Properties Acquisition
Partners, L.P. 0000 Xxxx X.X. Xxxxxxx,
Xxxxx 000 Xxxxxx, Xxxxx 00000 Attention:
Xxxxxxx X. Xxxxxxxx
With a copy to:
Xxxxxxxx Properties Acquisition
Partners, L.P. 0000 Xxxxxxxxxx Xxxxxxx
Xxxxx 000 Xxxxxxx, Xxxxxxx 00000
T. Landlord's Address for Payment: Xxxxxxxx Properties Acquisition
Partners, L.P. X.X. Xxx 000000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
U. Tenant's Address for Notice: 0000 Xxxxxxxxxx Xxxxxxx Xxxxx 000
Xxxxxxx, Xxxxxxx 00000 Attention: Xx.
Xxxxxxx X. XxXxxxxxx
ARTICLE 2
PREMISES AND QUIET ENJOYMENT
SECTION 2.1 Landlord hereby leases the Premises to Tenant, and Tenant
hereby rents and hires the Premises from Landlord, for the Term. During the
Term, Tenant shall have the right to use, in common with others and in
accordance with the Rules and Regulations, the Common Areas. Landlord and Tenant
each acknowledge that the Building is a part of a larger complex of office
buildings known as the Cumberland Office Park (the "Office Park").
SECTION 2.2 Provided that Tenant fully and timely performs all the terms of
this Lease on Tenant's part to be performed, including payment by Tenant of all
Rent, Tenant shall have, hold and enjoy the Premises during the Term without
hindrance or disturbance from or by Landlord; subject, however, to all of the
terms, conditions and provisions of any and all ground leases, deeds to secure
debt, mortgages, restrictive covenants, easements, and other encumbrances now or
hereafter affecting the Premises, the Project or the Office Park.
ARTICLE 3
TERM; COMMENCEMENT DATE;
DELIVERY AND ACCEPTANCE OF PREMISES
SECTION 3.1 The Commencement Date shall be the later of (a) the date the
Premises are deemed available for occupancy pursuant to Section 3.2 hereof or
(b) February 1, 2001.
SECTION 3.2
A. The Premises shall be deemed available for occupancy as soon as the
following conditions have been met: (a) the Leasehold Improvements (as defined
in Exhibit C to the Lease) have been substantially completed as determined by
Landlord's architect or space planner; (b) either a certificate or certificates
of occupancy (temporary or final) or other certificate permitting the lawful
occupancy of the Premises has been issued for the Premises by the appropriate
governmental authority; and (c) at least three (3) Business Days' notice of the
anticipated occurrence of the conditions in clauses (a) and (b) above has been
given to Tenant.
B. Notwithstanding anything to the contrary contained herein, if there is a
delay in the availability for occupancy of the Premises due to Tenant Delay (as
defined in Exhibit C to the Lease) then the Premises shall be deemed available
for occupancy on the date on which the Premises would have been available for
occupancy but for such Tenant Delay, even though a certificate of occupancy or
other certificate permitting the lawful occupancy of the Premises has not been
issued or the Leasehold Improvements have not been commenced or completed.
2
SECTION 3.3 The Net Rentable Area of the Premises and the Building are
approximately as stated in Sections 1.1I and J, respectively, and shall be
specifically calculated by the Landlord's architect or space planner using base
building plans in accordance with the definition set forth in Article 27 hereof
when the Leasehold Improvements for the Premises are substantially complete. By
written instrument substantially in the form of Exhibit D attached hereto,
Landlord shall notify Tenant of the Commencement Date, the Net Rentable Area of
the Premises and all other matters stated therein. The Commencement Notice shall
be conclusive and binding on Tenant as to all matters set forth therein, unless
within ten (10) days following delivery of such Commencement Notice, Tenant
contests any of the matters contained therein by notifying Landlord in writing
of Tenant's objections. The foregoing notwithstanding, Landlord's failure to
deliver any Commencement Notice to Tenant shall not affect Landlord's
determination of the Commencement Date or the Net Rentable Area of the Premises.
SECTION 3.4 Tenant may not enter or occupy the Premises prior to the
Commencement Date without Landlord's express written consent and any entry by
Tenant shall be subject to all of the terms of this Lease; provided however,
that no such early entry shall change the Commencement Date or the Expiration
Date.
SECTION 3.5 Occupancy of the Premises or any portion thereof by Tenant or
anyone claiming through or under Tenant for the conduct of Tenant's, or such
other person's business therein shall be conclusive evidence that Tenant and all
parties claiming through or under Tenant (a) have accepted the Premises as
suitable for the purposes for which the Premises are leased hereunder, (b) have
accepted the Common Areas as being in a good and satisfactory condition and (c)
have waived any defects in the Premises and the Project; provided however, that,
if any Leasehold Improvements have been constructed and installed to prepare the
Premises for Tenant's occupancy, Tenant's acceptance of the Premises, and waiver
of any defect therein, shall occur upon Landlord's substantial completion of the
Leasehold Improvement, in the Premises in accordance with the terms of Exhibit C
hereof, subject only to Landlord's completion of items on Landlord's punchlist.
Landlord may, at Landlord's option, conclusively establish the date of
"substantial completion" by providing Tenant with a written certification of
such date. Landlord shall have no liability, except for negligence or willful
misconduct, to Tenant or any of Tenant's agents, employees, licensees, servants
or invitees for any injury or damage to any person or property due to the
condition or design of, or any defect in, the Premises or the Project, including
any electrical, plumbing or mechanical systems and equipment of the Premises or
the Project and the condition of or any defect in the Land; and Tenant, for
itself and its agents, employees, licensees, servants and invitees, expressly
assumes all risks of injury or damage to person or property, either proximate or
remote, resulting from the condition of the Premises or the Project.
ARTICLE 4
RENT
SECTION 4.1 Tenant shall pay to Landlord, without notice, demand, offset or
deduction, in lawful money of the United States of America, at Landlord's
Address for Payment, or at such other place as Landlord shall designate in
writing from time to time: (a) the Base Rent in equal monthly installments, in
advance, on the first day of each calendar month during the Term, and (b) the
Additional Rent, at the respective times required hereunder. The first monthly
installment of Base Rent and the Additional Rent payable under Article 5 hereof
shall be paid in advance on the date of Tenant's execution of this Lease and
applied to the first installments of Base Rent and such Additional Rent coming
due under this Lease. Payment of Rent shall begin on the Commencement Date;
provided, however, that, if either the Commencement Date or the Expiration Date
falls on a date other than the first day of a calendar month, the Rent due for
such fractional month shall be prorated on a per diem basis between Landlord and
Tenant so as to charge Tenant only for the portion of such fractional month
falling within the Term.
SECTION 4.2 All past due installments of Rent shall be subject to a late
charge of $100.00 and shall additionally bear interest until paid at a rate per
annum (the "Interest Rate") equal to the greater of fifteen percent (15%) or
four percent (4%) above the prime rate of interest from time to time publicly
announced by The First National Bank of Chicago, a national banking association,
or any successor thereof; provided, however, that, if at the time such interest
is sought to be imposed the rate of interest exceeds the maximum rate permitted
under federal law or under the laws of the State of Georgia, the rate of
interest on such past due installments of Rent shall be the maximum rate of
interest then permitted by applicable law.
SECTION 4.3
A. On the first anniversary of the Commencement Date and on each
anniversary date thereafter (the "Adjustment Date(s)"), Tenant shall pay as
adjusted Base Rent an amount equal to 103% of the annual Base Rent for the
preceding Lease Year, with appropriate adjustments based upon any changes in the
Net Rentable Area of the Premises. For purposes of illustration only, if the
Base Rent for the first Lease Year is $100,000, the Base Rent for the second
Lease Year will be $103,000, and the Base Rent for the third Lease Year will be
$106,090, provided that the Net Rentable Area of the Premises remains constant
during said period. One-twelfth of said amount shall be payable by Tenant in
each month of the Lease Year, as hereinafter defined, as the new, adjusted
monthly Base Rent.
B. As used in this Lease, the term "Lease Year" shall mean a 12-month
period commencing on the Commencement Date or any anniversary thereof, except
that the final Lease Year shall be the period commencing on the last anniversary
of the Commencement Date during the Term, and ending on the Termination Date. If
the final Lease Year is less than twelve (12) months, all amounts shall be
approximately prorated based upon a 365-day year.
3
C. Any provisions in this Lease with respect to the payments of the Base
Rent by Tenant shall also be applicable to the adjusted Base Rent provided for
herein.
ARTICLE 5
OPERATING COSTS
SECTION 5.1 Tenant shall pay to Landlord, on a per square foot basis, as
Additional Rent, for each year or fractional year during the Term, Tenant's
Share of the amount, if any, that Operating Costs for such year exceed Base Year
Operating Costs ("Tenant's Operating Costs Payment"). Tenant's Operating Costs
Payment shall be calculated and paid as follows:
A. Commencing on the first day of January of the year following the year in
which the Commencement Date occurs, and on the first day of January of each year
during the Term thereafter, (or as soon after as is practicable), Landlord shall
furnish Tenant with a statement ("Landlord's Operating Costs Estimate") setting
forth Landlord's reasonable estimate of Operating Costs for the forthcoming year
and Tenant's Share of the amount by which such Operating Costs exceed the Base
Year Operating Costs. On the first day of each calendar month during such year,
Tenant shall pay to Landlord one-twelfth (1/12th) of Tenant's Operating Costs
Payment. If for any reason Landlord has not provided Tenant with Landlord's
Operating Costs Estimate on the first day of January of any year during the
Term, then (a) until the first day of the calendar month following the month in
which Tenant is given Landlord's Operating Costs Estimate, Tenant shall continue
to pay to Landlord on the first day of each calendar month the sum, if any,
payable by Tenant under this Section 5.1 for the month of December of the
preceding year and, (b) promptly after Landlord's Operating Costs Estimate is
furnished to Tenant, Landlord shall give notice to Tenant stating whether the
installments of Tenant's Operating Costs Payments previously made for such year
were greater or less than the installments of Tenant's Operating Costs Payments
to be made for such year in accordance with Landlord's Operating Costs Estimate,
and (i) if there shall be a deficiency, Tenant shall pay the amount thereof to
Landlord within ten (10) days after the delivery of Landlord's Operating Costs
Estimate, or (ii) if there shall have been an overpayment, Landlord shall apply
such overpayment as a credit against the next accruing monthly installment(s) of
Additional Rent due from Tenant under this Section 5.1 until fully credited to
Tenant, and (iii) on the first day of the calendar month following the month in
which Landlord's Operating Costs Estimate is given to Tenant and on the first
day of each calendar month throughout the remainder of such year, Tenant shall
pay to Landlord an amount equal to one-twelfth (1/12th) of Tenant's Operating
Costs Payment. The foregoing notwithstanding, Landlord shall have the right from
time to time during any year to notify Tenant in writing of any change in
Landlord's Operating Costs Estimate, in which event such Tenant's Operating
Costs Payment, as previously estimated, shall be adjusted to reflect the amount
shown in such notice and shall be effective, and due from Tenant, on the first
day of the month following Landlord's giving of such notice.
B. Commencing on the first day of March of the year following the year in
which the Commencement Date occurs, and on the first day of March of each year
during the Term thereafter (or as soon after as is practicable), Landlord shall
furnish Tenant with a statement of the actual Operating Costs for the preceding
year, and Tenant's Share of the amount by which such actual Operating Costs
exceeds the Base Year Operating Costs. Within thirty (30) days after Landlord's
giving of such statement, Tenant shall make a lump sum payment to Landlord in
the amount, if any, by which Tenants' Operating Costs Payment for such preceding
year as shown on such Landlord's statement exceeds the aggregate of the monthly
installments of Tenant's Operating Costs Payments actually paid during such
preceding year. If Tenant's Operating Costs Payment, as shown on such Landlord's
statement, is less than the aggregate of the monthly installments of Tenant's
Operating Costs Payment actually paid by Tenant during such preceding year, then
Landlord shall apply such amount to the next accruing installment(s) of
Additional Rent due from Tenant under this Section 5.1 until fully credited to
Tenant.
C. If the Term ends on a date other than the last day of December, the
actual Operating Costs for the year in which the Expiration Date occurs shall be
prorated so that Tenant shall pay that portion of Tenant's Share of Operating
Costs for such year represented by a fraction, the numerator of which shall be
the number of days during such fractional year falling within the Term, and the
denominator of which is 365 (or 366, in the case of a leap year). The provisions
of this Section 5.1 shall survive the Expiration Date or any sooner termination
provided for in this Lease.
SECTION 5.2
A. For purposes of this Lease, the term "Operating Costs" shall mean any
and all expenses, costs and disbursements of every kind which Landlord pays,
incurs or becomes obligated to pay in connection with the operation, management,
repair and maintenance of all portions of the Project. It is understood that
real estate adjacent to the Project has been developed as part of a development
project which includes the Building and that certain additional real estate
adjacent to the Land may be developed in the future. Any such development
project which shares facilities and services with the Building shall include
that portion of Operating Costs relating to such development project which is
allocated to the Building or the Land. All Operating Costs shall be determined
according to generally accepted accounting principles which shall be
consistently applied. Operating Costs include the following: (a) Wages,
salaries, and fees (including all reasonable education, travel and professional
fees) of all personnel or entities (exclusive of Landlord's executive personnel)
engaged in the operation, repair, maintenance, or security of the Project,
4
including taxes, insurance, and benefits relating thereto and the costs of all
supplies and materials (including work clothes and uniforms) used in the
operation, repair, maintenance and security of the Project; (b) Cost of
performance by Landlord's personnel of, or of all service agreements for,
maintenance, janitorial services, access control, alarm service, window
cleaning, elevator maintenance and landscaping for the Project (such cost shall
include the rental of personal property used by Landlord's personnel in the
maintenance and repair of the Project); (c) Cost of utilities for the Project,
including water, sewer, power, electricity, gas, fuel, lighting and all
air-conditioning, heating and ventilating costs; (d) Cost of all insurance,
including casualty and liability insurance applicable to the Project and to
Landlord's equipment, fixtures and personal property used in connection
therewith, business interruption or rent insurance against such perils as are
commonly insured against by prudent landlords, such other insurance as may be
required by any lessor or mortgagee of Landlord, and such other insurance which
Landlord considers reasonably necessary in the operation of the Project,
together with all appraisal and consultants' fees in connection with such
insurance; (e) All Taxes (for purposes hereof, the term "Taxes" shall mean, all
taxes, assessments, levies, and other governmental charges, applicable to or
assessed against the Project or any portion thereof, or applicable to or
assessed against Landlord's personal property used in connection therewith,
whether federal, state, county, or municipal and whether assessed by taxing
districts, improvement districts, or authorities presently taxing the Project or
the operation thereof or by other taxing authorities or improvement districts
subsequently created, or otherwise, and any other taxes and assessments
attributable to or assessed against all or any part of the Project or its
operation; including any reasonable expenses, including fees and disbursements
of attorneys, tax consultants, arbitrators, appraisers, experts and other
witnesses, incurred by Landlord in contesting any taxes or the assessed
valuation of all or any part of the Project. If at any time during the Term
there shall be levied, assessed, or imposed on Landlord or all or any part of
the Project by any governmental entity any general or special ad valorem or
other charge or tax directly upon rents received under leases, or if any fee,
tax, assessment, or other charge is imposed which is measured by or based, in
whole or in part, upon such rents, or if any charge or tax is made based
directly or indirectly upon the transactions represented by leases or the
occupancy or use of the Project or any portion thereof, such taxes, fees,
assessments or other charges shall be deemed to be Taxes; provided, however,
that any (1) franchise, corporation, income or net profits tax, unless
substituted for real estate taxes or imposed as additional charges in connection
with the ownership of the Project, which may be assessed against Landlord or the
Project or both, (2) transfer taxes assessed against Landlord or the Project or
both, (3) penalties or interest on any late payments of Landlord and, (4)
personal property taxes of Tenant or other tenants in the Project shall be
excluded from Taxes. If any or all of the Taxes paid hereunder are by law
permitted to be paid in installments, notwithstanding how Landlord pays the
same, then, for purposes of calculating Operating Costs, such Taxes shall be
deemed to have been divided and paid in the maximum number of installments
permitted by law, and there shall be included in Operating Costs for each year
only such installments as are required by law to be paid within such year,
together with interest thereon and on future such installments as provided by
law); (f) Legal and accounting costs incurred by Landlord or paid by Landlord to
third parties (exclusive of legal fees with respect to disputes with individual
tenants, negotiations of tenant leases, or with respect to the ownership rather
than the operation of the Project), appraisal fees, consulting fees, all other
professional fees and disbursements and all association dues; (g) Cost of
non-capitalized repairs and general maintenance for the Project (excluding
repairs and general maintenance paid by proceeds of insurance or by Tenant,
other tenants of the Project or other third parties); (h) Amortization of the
cost of improvements or equipment which are capital in nature and which (i) are
for the purpose of reducing Operating Costs for the Project, up to the amount
saved as a result of the installation thereof, as reasonably estimated by
Landlord, or (ii) enhance the Project for the general benefit of tenants or
occupants thereof, or (iii) are required by any governmental regulation or
authority, or (iv) replace any Building equipment needed to operate the Project
at the same quality levels as prior to the replacement (all such costs,
including interest thereon, shall be amortized on a straight-line basis over the
useful life of the capital investment items, as reasonably determined by
Landlord, but in no event beyond the reasonable useful life of the Project as an
office project); (i) the Project management office rent or rental value; and (j)
a management fee (whether or not Landlord engages a manager for the Project) and
all items reimbursable to the Project manager, if any, pursuant to any
management contract for the Project (the management fee shall be the greater of
(i) three percent (3%) of the gross receipts from the operation of the Project
or (ii) fair market management fee charged from time to time by management
companies in the Atlanta, Georgia suburban area).
B. "Operating Costs" shall not include (a) specific costs for any capital
repairs, replacements or improvements, except as provided above; (b) expenses
for which Landlord is reimbursed or indemnified (either by an insurer,
condemnor, tenant, warrantor or otherwise) to the extent of funds received by
Landlord; (c) expenses incurred in leasing or procuring tenants (including lease
commissions, advertising expenses and expenses of renovating space for tenants);
(d) payments for rented equipment, the cost of which would constitute a capital
expenditure not permitted pursuant to the foregoing if the equipment were
purchased; (e) interest or amortization payments on any mortgages; (f) net base
rents under ground leases; (g) costs representing an amount paid to an affiliate
of Landlord which is in excess of the amount which would have been paid in the
absence of such relationship; or (h) costs specially billed to and paid by
specific tenants. There shall be no duplication of costs or reimbursements.
SECTION 5.3 If the Building is not fully occupied (meaning one-hundred
percent (100%) of the Net Rentable Area of the Building) during any full or
fractional year of the Term, the actual Operating Costs shall be adjusted for
such year to an amount which Landlord estimates would have been incurred in
Landlord's reasonable judgment had the Building been fully occupied.
SECTION 5.4 If during the Term any change occurs in either the number of
square feet of the Net Rentable Area of the Premises or of the Net Rentable Area
of the Building, Tenant's Share of Operating Costs shall be adjusted, effective
as of the date of any such change. Landlord shall promptly notify Tenant in
writing of such change and the reason therefor. Any changes made pursuant to
this Section 5.4 shall not alter the computation of Operating Costs as provided
5
in this Article 5, but, on and after the date of any such change, Tenant's
Operating Costs Payment pursuant to Section 5.1A shall be computed upon Tenant's
Share thereof, as adjusted. If such estimated payments of Tenant's Share are so
adjusted during a year, a reconciliation payment for Tenant's Share of Operating
Costs pursuant to this Article 5 for the calendar year in which such change
occurs shall be computed pursuant to the method set forth in Section 5.1B, such
computation to take into account the daily weighted average of Tenant's Share of
Operating Costs during such year.
ARTICLE 6
PARKING
SECTION 6.1 Landlord hereby grants to Tenant a license to use in common
with other tenants and with the public the Parking Facilities (such licenses
shall be referred to as "Tenant's Parking Permits"). Tenant shall be entitled to
use four (4) unassigned parking spaces in the Parking Facilities for each 1,000
square feet of Net Rentable Area of the Premises leased by Tenant. Landlord
shall not be obligated to provide Tenant with any additional parking spaces. If
Tenant fails to observe the Rules and Regulations with respect to the Parking
Facilities, then Landlord, at its option, shall have the right to treat such
failure as a default under this Lease and to terminate Tenant's Parking Permits,
without legal process, and to remove Tenant, Tenant's vehicles and those of its
employees, licensees or invitees and all of Tenant's personal property from the
Parking Facilities.
SECTION 6.2 If all or any portion of the Parking Facilities shall be
damaged or rendered unusable by fire or other casualty or any taking pursuant to
eminent domain proceeding (or deed in lieu thereof), and as a result thereof
Landlord or the garage operator is unable to make available to Tenant the
parking provided for herein, then the number of cars which Tenant shall be
entitled to park hereunder shall be proportionately reduced so that the number
of cars which Tenant may park in the Parking Facilities after the casualty or
condemnation in question shall bear the same ratio to the total number of cars
which can be parked in the Parking Facilities at such time as the number of cars
Tenant had the right to park in the Parking Facilities prior to such casualty or
condemnation bore to the aggregate number of cars which could be parked therein
at that time.
ARTICLE 7
SERVICES OF LANDLORD
SECTION 7.1
A. During the Term, Landlord shall furnish Tenant with the following
services: (a) hot and cold water in Building Standard bathrooms and chilled
water in Building Standard drinking fountains; (b) electrical power sufficient
for lighting the Premises and for the operation therein of typewriters,
voicewriters, calculating machines, word processing equipment, photographic
reproduction equipment, copying machines, personal computers, and similar items
of business equipment which consume, in the aggregate, less than five (5) xxxxx
per square foot of Net Rentable Area of the Premises and require a voltage of
120 volts single phase or less, (c) heating, ventilating or air-conditioning, as
appropriate, during Business Hours at such temperatures and in such amounts as
customarily and seasonally provided to tenants occupying comparable space in
office buildings in the Atlanta, Georgia suburban area; (d) electric lighting
for the Common Areas of the Project; (e) passenger elevator service (if the
Building has elevators), in common with others, for access to and from the
Premises twenty-four (24) hours per day, seven (7) days per week; provided,
however, that Landlord shall have the right to limit the number of (but not
cease to operate all) elevators to be operated after Business Hours and on
Saturdays, Sundays and Holidays; (f) janitorial cleaning services; (g)
facilities for Tenant's loading, unloading, delivery and pick-up activities,
including access thereto during Business Hours, subject to the Rules and
Regulations, the type of facilities, and other limitations of such loading
facilities; and (h) replacement, as necessary, of all Building Standard lamps
and ballasts in Building Standard light fixtures within the Premises. All
services referred to in this Section 7.1A shall be provided by Landlord and paid
for by Tenant as part of Tenant's Operating Costs Payment.
B. If Tenant requires air-conditioning, heating or other services,
including cleaning services, routinely supplied by Landlord for hours or days in
addition to the hours and days specified in Section 7.1A, Landlord shall make
reasonable efforts to provide such additional service after reasonable prior
written request therefor from Tenant, and Tenant shall reimburse Landlord for
the cost of such additional service; provided however, that, if any other
tenants in the Building served by the equipment providing such additional
service to the Premises request that Landlord concurrently provide such service
to such other tenants, the cost of Landlord's providing such additional and
concurrent service shall be prorated among all of the tenants requesting such
service. Landlord shall have no obligation to provide any additional service to
Tenant at any time Tenant is in default under this Lease unless Tenant pays to
Landlord, in advance, the cost of such additional service. If any machinery or
equipment which generates abnormal heat or otherwise creates unusual demands on
the air-conditioning or heating system serving the Premises is used in the
Premises and if Tenant has not, within five (5) days after demand from Landlord,
taken such steps, at Tenant's expense, as shall be necessary to cease such
adverse affect on the air-conditioning or heating system, Landlord shall have
the right to install supplemental air-conditioning or heating units in the
Premises, and the full cost of such supplemental units (including the cost of
acquisition, installation, operation, use and maintenance thereof) shall be paid
by Tenant to Landlord in advance or on demand.
C. If Tenant's requirements for or consumption of electricity exceed the
capacities specified in clause (b) of Section 7.1A hereof, Landlord shall, at
Tenant's sole cost and expense, make reasonable efforts to supply such service
6
through the then-existing feeders and risers serving the Building and the
Premises and shall xxxx Tenant periodically for such additional service and
Tenant shall pay each such xxxx with the installment of Rent next due. The
degree of such additional consumption and potential consumption by Tenant shall
be determined at Landlord's election, by either or both (a) a survey of standard
or average tenant usage of electricity in the Building performed by a reputable
consultant selected by Landlord and paid for by Tenant, and (b) a separate meter
in the Premises to be installed, maintained, and read by Landlord, all at
Tenant's sole cost and expense. Tenant shall not install any electrical
equipment requiring special wiring unless approved in advance by Landlord. At no
time shall use of electricity in the Premises exceed the capacity of existing
feeders and risers to or wiring in the Premises. Any risers or wiring to meet
Tenant's excess electrical requirements shall, upon Tenant's written request, be
installed by Landlord, at Tenant's sole cost, if, in Landlord's reasonable
judgment, the same are necessary and shall not (i) cause permanent damage or
injury to the Project, the Building or the Premises, (ii) cause or create a
dangerous or hazardous condition, (iii) entail excessive or unreasonable
alterations, repairs or expenses or (iv) interfere with or disturb other tenants
or occupants of the Building.
SECTION 7.2 Landlord's obligation to furnish electrical and other utility
services shall be subject to the rules and regulations of the supplier of such
electricity or other utility services and the rules and regulations of any
municipal or other governmental authority regulating the business of providing
electricity and other utility services. Landlord shall have the right, at
Landlord's option, upon not less than thirty (30) days' prior written notice to
Tenant (provided such prior notice will be less if either the discontinuance of
such service is required by applicable law or Landlord receives shorter notice
from the utility company providing electricity or other utility service), to
discontinue electric or other utility services to the Premises and arrange for a
direct connection thereof through a public utility supplying such service. If
Landlord gives such notice of discontinuance, Landlord shall make all necessary
arrangements with the public utility supplying electric or other utility service
directly to the Building to furnish electric or other utility service to the
Premises, and, unless prohibited by law or regulations of such public utility,
Landlord shall not discontinue electric or other utility service to the Premises
until such public utility is ready to supply service to the Premises. Tenant
shall, however, be responsible for contracting promptly and directly with such
public utility supplying such service and for paying all deposits for, and all
costs relating to, such service.
SECTION 7.3 No failure to furnish, or any stoppage of, the services
referred to in this Article 7 resulting from any cause shall make Landlord
liable in any respect for damages to any person, property or business, or be
construed as an eviction of Tenant, or entitle Tenant to any abatement of Rent
or other relief from any of Tenant's obligations under this Lease. Should any
malfunction of any systems or facilities occur within the Project or should
maintenance or alterations of such systems or facilities become necessary,
Landlord shall repair the same promptly and with reasonable diligence, and
Tenant shall have no claim for rebate, abatement of Rent, or damages because of
malfunctions or any such interruptions in service.
ARTICLE 8
ASSIGNMENT AND SUBLETTING
SECTION 8.1 Neither Tenant nor its legal representatives or successors in
interest shall, by operation of law or otherwise, assign, mortgage, pledge,
encumber or otherwise transfer this Lease or any part hereof, or the interest of
Tenant under this Lease, or in any sublease or the rent thereunder. The Premises
or any part thereof shall not be sublet, occupied or used for any purpose by
anyone other than Tenant, without Tenant's obtaining in each instance the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed, in the manner hereinafter provided. Tenant shall not
modify, extend, or amend a sublease previously consented to by Landlord without
obtaining Landlord's prior written consent thereto, which consent shall not be
unreasonably withheld, conditioned or delayed. Landlord's consent to any
assignment of this Lease or sublet of the Premises shall not waive, nor be
deemed to have waived, the provisions of this Article 8 and all subsequent
assignments and subleases shall require the prior written consent of Landlord in
the manner hereinafter provided.
SECTION 8.2 An assignment of this Lease shall be deemed to have occurred
(a) if in a single transaction or in a series of transactions more than 50% in
interest in Tenant, any guarantor of this Lease, or any subtenant (whether
stock, partnership, interest or otherwise) is transferred, diluted, reduced, or
otherwise affected with the result that the present holder or owners of Tenant,
such guarantor, or such subtenant have less than a 50% interest in Tenant, such
guarantor or such subtenant, or (b) if Tenant's obligations under this Lease are
taken over or assumed in consideration of Tenant leasing space in another office
building. The transfer of the outstanding capital stock of any corporate Tenant,
guarantor or subtenant through the "over-the-counter" market or any recognized
national securities exchange (other than by persons owning 5% or more of the
voting calculation of such 50% interest of clause 8.2(a) above) shall not be
included in the calculation of such 50% interest in clause (a) above.
SECTION 8.3 Notwithstanding anything to the contrary in Section 8.1, Tenant
shall have the right, upon ten (10) days' prior written notice to Landlord, to
(a) sublet all or part of the Premises to any related corporation or other
entity which controls Tenant, is controlled by Tenant or is under common control
with Tenant; or (b) assign this Lease to a successor corporation into which or
with which Tenant is merged or consolidated or which acquired substantially all
of Tenant's assets and property; provided that (i) such successor corporation
assumes all of the obligations and liabilities of Tenant and shall have assets,
capitalization and net worth at least equal to the assets, capitalization and
net worth of Tenant as of the date of this Lease as determined by generally
accepted accounting principles, and (ii) Tenant shall provide in its notice to
Landlord the information required in Section 8.4. For the purpose hereof
"control" shall mean ownership of not less than 50% of all the voting stock or
legal and equitable interest in such corporation or entity.
7
SECTION 8.4 If Tenant should desire to assign this Lease or sublet the
Premises (or any part thereof), Tenant shall give Landlord written notice no
later than the time required for notice under Section 8.3 in the case of an
assignment or subletting, or not less than ten (10) days in advance of the
proposed effective date of any other proposed assignment or sublease, specifying
(a) the name, current address, and business of the proposed assignee or
sublessee, (b) the amount and location of the space within the Premises proposed
to be so subleased, (c) the proposed effective date and duration of the
assignment or subletting, and (d) the proposed rent or consideration to be paid
to Tenant by such assignee or sublessee. Tenant shall promptly supply Landlord
with financial statements and other information as Landlord may request to
evaluate the proposed assignment or sublease. For assignments and sublettings
other than those permitted by Section 8.3, Landlord shall have thirty (30) days
following receipt of such notice and other information requested by Landlord
within which to notify Tenant in writing that Landlord elects: (i) to terminate
this Lease as to the space so affected as of the proposed effective date set
forth in Tenant's notice, in which event Tenant shall be relieved of all further
obligations hereunder as to such space, except for obligations under Articles 17
and 22 and all other provisions of this Lease which expressly survive the
termination hereof; or (ii) to permit Tenant to assign or sublet such space;
provided, however, that, if the rent rate agreed upon between Tenant and its
proposed subtenant is greater than the rent rate that Tenant must pay Landlord
hereunder for that portion of the Premises, or if any consideration shall be
promised to or received by Tenant in connection with such proposed assignment or
sublease (in addition to rent), then all of such excess rent and other
consideration shall be considered Additional Rent owed by Tenant to Landlord
(less brokerage commissions, attorneys' fees and other disbursements reasonably
incurred by Tenant for such assignment and subletting if acceptable evidence of
such disbursements is delivered to Landlord), and shall be paid by Tenant to
Landlord, in the case of excess rent, in the same manner that Tenant pays Base
Rent and, in the case of any other consideration, within ten (10) Business Days
after receipt thereof by Tenant; or (iii) to refuse, in Landlord's reasonable
discretion, to consent to Tenant's assignment or subleasing of such space and to
continue this Lease in full force and effect as to the entire Premises. The
parties agree that Landlord may reasonably refuse to consent to an assignment or
subletting if the proposed assignee or subtenant is not financially
creditworthy, is a governmental authority or agency, an organization or person
enjoying sovereign or diplomatic immunity, a medical or dental practice or a
user that will attract a volume, frequency or type of visitor or employee to the
Building which is not consistent with the standards of a high quality office
building or that will impose an excessive demand on or use of the facilities or
services of the Building. It shall also be reasonable for Landlord to refuse to
consent to any assignment or subletting if (x) Tenant is then in default under
this Lease, or (y) such assignment or subletting would cause a default under
another lease in the Building or under any ground lease, deed of trust,
mortgage, restrictive covenant, easement or other encumbrance affecting the
Project, or cause a violation of any applicable laws or regulations or insurance
requirements affecting the Project, or in any way increase the risk of
environmental damage to the Project, or (z) such assignment or subletting would
compete with Landlord's leasing of the Project or otherwise have a potential
negative monetary impact on Landlord. If Landlord should fail to notify Tenant
in writing of such election within the aforesaid thirty (30) day period,
Landlord shall be deemed to have elected option (iii) above. Tenant agrees to
reimburse Landlord for legal fees and any other reasonable costs incurred by
Landlord in connection with any permitted assignment or subletting and such
payment shall not be deducted from the Additional Rent owed to Landlord pursuant
to subsection (ii) above. Tenant shall deliver to Landlord copies of all
documents executed in connection with any permitted assignment or subletting,
which documents shall be in form and substance reasonably satisfactory to
Landlord and which shall require any assignee to assume performance of all terms
of this Lease to be performed by Tenant or any subtenant to comply with all the
terms of this Lease to be performed by Tenant. No acceptance by Landlord of any
Rent or any other sum of money from any assignee, sublessee or other category of
transferee shall be deemed to constitute Landlord's consent to any assignment,
sublease, or transfer.
SECTION 8.5 Any attempted assignment or sublease by Tenant in violation of
the terms and provisions of this Article 8 shall be void and shall constitute a
material breach of this Lease. In no event, shall any assignment, subletting or
transfer, whether or not with Landlord's consent, relieve Tenant of its primary
liability under this Lease for the entire Term, and Tenant shall in no way be
released from the full and complete performance of all the terms hereof.
Further, Tenant's continuing primary liability for the Tenant's obligations
under this Lease following an assignment or sublease shall not be released,
impaired or otherwise affected by Landlord's waiver of any provision of this
Lease or Landlord's failure to enforce any provision of this Lease. If Landlord
takes possession of the Premises before the expiration of the Term of this
Lease, Landlord shall have the right, at its option, to terminate all subleases,
or to take over any sublease of the Premises or any portion thereof and such
subtenant shall attorn to Landlord, as its landlord, under all the terms and
obligations of such sublease occurring from and after such date, but excluding
previous acts, omissions, negligence or defaults of Tenant and any repair or
obligation in excess of available net insurance proceeds or condemnation award.
SECTION 8.6
A. Tenant acknowledges that this Lease is a lease of nonresidential real
property and therefore agrees that Tenant, in the event it should become the
debtor in possession, or the trustee for Tenant, as applicable (collectively
"the Trustee"), in any proceeding under Title 11 of the United State Bankruptcy
Code relating to Bankruptcy, as amended (the "Bankruptcy Code"), shall not seek
or request any extension of time to assume or reject this Lease or to perform
any obligations of this Lease which arise from or after the order of relief.
B. If the Trustee proposes to assume or to assign this Lease or sublet the
Premises (or any portion thereof) to any person which shall have made a bona
fide offer to accept an assignment of this Lease or a subletting on terms
acceptable to the Trustee, the Trustee shall give Landlord, and lessors and
mortgagees of Landlord of which Tenant has notice, written notice setting forth
the name and address of such person and the terms and conditions of such offer,
8
no later than twenty (20) days after receipt of such offer, but in any event no
later then ten (10) days prior to the date on which the Trustee makes
application to the Bankruptcy Court for authority and approval to enter into
such assumption and assignment or subletting. Landlord shall have the prior
right and option, to be exercised by written notice to the Trustee given at any
time prior to the effective date of such proposed assignment or subletting, to
accept an assignment of this Lease or subletting of the Premises upon the same
terms and conditions and for the same consideration, if any, as the bona fide
offer made by such person, less any brokerage commissions which may be payable
out of the consideration to be paid by such person for the assignment or
subletting of this Lease.
C. The Trustee shall have the right to assume Tenant's rights and
obligations under this Lease only if the Trustee: (a) promptly cures or provides
adequate assurance that the Trustee will promptly cure any default under the
Lease; (b) compensates or provides adequate assurance that the Trustee will
promptly compensate Landlord for any actual pecuniary loss incurred by Landlord
as a result of Tenant's default under this Lease; and (c) provides adequate
assurance of future performance under the Lease. Adequate assurance of future
performance by the proposed assignee shall include, as a minimum, that: (i) the
Trustee or any proposed assignee of the Lease shall deliver to Landlord a
security deposit in an amount equal to at least three (3) months' Rent accruing
under the Lease; (ii) any proposed assignee of the Lease shall provide to
Landlord an audited financial statement, dated no later than six (6) months
prior to the effective date of such proposed assignment or sublease with no
material change therein as of the effective date, which financial statement
shall show the proposed assignee to have a net worth equal to at least twelve
(12) months' Rent accruing under the Lease, or, in the alternative, the proposed
assignee shall provide a guarantor of such proposed assignee's obligations under
the Lease, which guarantor shall provide an audited financial statement meeting
the requirements of (ii) above and shall execute and deliver to Landlord a
guaranty agreement in form and substance acceptable to Landlord; and (iii) any
proposed assignee shall grant to Landlord a security interest in favor of
Landlord in all furniture, fixtures, and other personal property to be used by
such proposed assignee in the Premises. All payments of Rent required of Tenant
under this Lease, whether or not expressly denominated as such in this Lease,
shall constitute rent for the purposes of Title 11 of the Bankruptcy Code.
D. The parties agree that for the purposes of the Bankruptcy Code relating
to (a) the obligation of the Trustee to provide adequate assurance that the
Trustee will "promptly" cure defaults and compensate Landlord for actual
pecuniary loss, the word "promptly" shall mean that cure of defaults and
compensation will occur no later than sixty (60) days following the filing of
any motion or application to assume this Lease; and (b) the obligation of the
Trustee to compensate or to provide adequate assurance that the Trustee will
promptly compensate Landlord for "actual pecuniary loss," the term "actual
pecuniary loss" shall mean, in addition to any other provisions contained herein
relating to Landlord's damages upon default, payments of Rent, including
interest at the Interest Rate on all unpaid Rent, all attorneys' fees and all
related costs of Landlord incurred in connection with any default of Tenant in
connection with Tenant' s bankruptcy proceedings.
E. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed, without further act or deed,
to have assumed all of the obligations arising under this Lease and each of the
conditions and provisions hereof on and after the date of such assignment. Any
such assignee shall, upon the request of Landlord, forthwith execute and deliver
to Landlord an instrument, in form and substance acceptable to Landlord,
confirming such assumption.
SECTION 8.7 The term "Landlord," as used in this Lease, so far as covenants
or obligations on the part of Landlord are concerned, shall be limited to mean
and include only the owner or owners, at the time in question, of the fee title
to, or a lessee's interest in a ground lease of, the Land or the Building. In
the event of any transfer, assignment or other conveyance or transfers of any
such title or interest, Landlord herein named (and in case of any subsequent
transfers or conveyances, the then grantor) shall be automatically freed and
relieved from and after the date of such transfer, assignment or conveyance of
all liability as respects the performance of any covenants or obligations on the
part of Landlord contained in this Lease thereafter to be performed and, without
further agreement, the transferee of such title or interest shall be deemed to
have assumed and agreed to observe and perform any and all obligations of
Landlord hereunder, during its ownership of the Project. Landlord may transfer
its interest in the Project without the consent of Tenant and such transfer or
subsequent transfer shall not be deemed a violation on Landlord's part of any of
the terms of this Lease.
ARTICLE 9
REPAIRS
SECTION 9.1 Except for ordinary wear and tear, casualty and condemnation
and except as otherwise provided in Section 9.2, Landlord shall perform all
maintenance and make all repairs and replacements to the Premises (including the
Leasehold Improvements). Tenant shall pay to Landlord the actual cost (including
a fee equal to fifteen percent (15%) of actual costs to cover Landlord's
overhead which includes a fee for Landlord's agent or manager) for (a) all
maintenance, repairs and replacements within the Premises (including the
Leasehold Improvements), other than (i) repairs and replacements necessitated by
the willful misconduct or negligence of Landlord or its agents, employees,
contractors, invitees or licensees to the extent the cost thereof is not
collectible under Tenant's insurance, or, if Tenant is not carrying all of the
insurance described in Section 14.1A, to the extent such cost would not be
covered by the insurance described in Section 14.1A, if the same were in effect,
and (ii) maintenance, repairs and replacements to the central systems of the
Building located within the Premises; (b) all repairs and replacements
necessitated by damage to the Project (including the Building structure and the
9
central systems of the Building within the Premises) caused by the negligence or
willful misconduct or negligence of Tenant or its agents, contractors, invitees
and licensees but only to the extent the cost thereof is not collectible under
Landlord's insurance, or, if Landlord is not carrying all of the insurance
described in Section 14.2, to the extent that such cost would not be covered by
the insurance described in Section 14.2 if the same were in effect. Amounts
payable by Tenant pursuant to this Section 9.1 shall be payable on demand after
receipt of an invoice therefor from Landlord. Landlord has no obligation and has
made no promise to maintain, alter, remodel, improve, repair, decorate, or paint
the Premises or any part thereof, except as specifically set forth in this
Lease. In no event shall Landlord have any obligation to maintain, repair or
replace any furniture, furnishings, fixtures or personal property of Tenant.
SECTION 9.2 Tenant shall keep the Premises (including the Leasehold
Improvements) in good order and in a safe, neat and clean condition. No
representations respecting the condition of the Premises or the Building or the
other portions of the Project have been made by Landlord to Tenant except as
specifically set forth in this Lease. Except as provided in Section 10.1 or
specifically consented to by Landlord, Tenant shall not perform any maintenance
or repair work or make any replacement in or to the Premises (including the
Leasehold Improvements) but rather shall promptly notify Landlord of the need
for such maintenance, repair or replacement so that Landlord may proceed to
perform the same pursuant to the provisions of Section 9.1. In the event
Landlord specifically consents to the performance of any maintenance or the
making of any repairs or replacements by Tenant and Tenant fails to promptly
commence and diligently pursue the performance of such maintenance or the making
of such repairs or replacements, then Landlord, at its option, may perform such
maintenance or make such repairs and Tenant shall reimburse Landlord, on demand
after Tenant receives an invoice therefor, the cost thereof plus a fee equal to
fifteen percent (15%) of the actual costs to cover overhead, which includes a
fee for Landlord's agent or manager.
SECTION 9.3 All repairs made by Tenant pursuant to Section 9.2 shall be
performed in a good and workmanlike manner by contractors or other repair
personnel selected by Tenant from an approved list of contractors and repair
personnel maintained by Landlord in the Project's management office; provided,
however, that neither Tenant nor its contractors or repair personnel shall be
permitted to do any work affecting the central systems of the Building. In no
event shall such work be done for Landlord's account or in a manner which allows
any liens to be filed in violation of Article 11. To the extent any repairs
involve the making of alterations to the Premises, Tenant shall comply with the
provisions of Article 10.
SECTION 9.4 Subject to the other provisions of this Lease imposing
obligations regarding repair upon Tenant, Landlord shall repair all machinery
and equipment necessary to provide the services of Landlord described in Article
7 (provided that Tenant shall pay the costs of any repair to such systems or any
part thereof damaged by Tenant and Tenant's employees, customers, clients,
agents, licensees and invitees) and for repair of all portions of the Project
which do not comprise a part of the Premises and are not leased to others.
ARTICLE 10
ALTERATIONS
SECTION 10.1 Tenant shall not at any time during the Term make any
alterations to the Premises without first obtaining Landlord's written consent
thereto, which consent Landlord shall not unreasonably withhold or delay;
provided, however, that Landlord shall not be deemed unreasonable by refusing to
consent to any alterations which are visible from the exterior of the Building
or the Project, which will or are likely to cause any weakening of any part of
the structure of the Premises, the Building or the Project or which will or are
likely to cause damage or disruption to the central building systems or which
are prohibited by any underlying ground lease or mortgage. Should Tenant desire
to make any alterations to the Premises, Tenant shall submit all plans and
specifications for such proposed alterations to Landlord for Landlord's review
before Tenant allows any such work to commence, and Landlord shall promptly
approve or disapprove such plans and specifications for any of the reasons set
forth in this Section 10.1 or for any other reason reasonably deemed sufficient
by Landlord. Tenant shall select and use only contractors, subcontractors or
other repair personnel from those listed on Landlord's approved list maintained
by Landlord in the Project management office. Upon Tenant's receipt of written
approval from Landlord and any required approval of any mortgagee or lessor of
Landlord, and upon Tenant's payment to Landlord of (a) a reasonable fee
prescribed by Landlord for the work of Landlord and Landlord's employees and
representatives in reviewing and approving such plans and specifications and (b)
the fees, if any charged by any mortgagee or lessor of Landlord for such review
and approval, Tenant shall have the right to proceed with the construction of
all approved alterations, but only so long as such alterations are in strict
compliance with the plans and specifications so approved by Landlord and with
the provisions of this Article 10 Landlord. All alterations shall be made at
Tenant's sole cost and expense, either by Tenant's contractors or, at Tenant's
option, by Landlord on terms reasonably satisfactory to Tenant, including a fee
of fifteen percent (15%) of the actual costs of such work to cover Landlord's
overhead on a fee for Landlord's agent or manager in supervising and
coordinating such work. If Tenant's contractor performs such work, a fee of
seven and one-half percent (7.5%) of the actual costs of such work fee for
Landlord's agent or manager in supervising and coordinating such work to cover
overhead and a fee for Landlord's agent or manager for supervising and
coordinating such work. In no event, however, shall anyone other than Landlord
or Landlord's employees or representatives perform work to be done which affects
the central systems of the Building.
SECTION 10.2 All construction, alterations and repair work done by or for
Tenant shall (a) be performed in such a manner as to maintain harmonious labor
10
relations; (b) not adversely affect the safety of the Project, the Building or
the Premises or the systems thereof and not affect the central systems of the
Building; (c) comply with all building, safety, fire, plumbing, electrical, and
other codes and governmental and insurance requirements; (d) not result in any
usage in excess of Building Standard of water, electricity, gas, or other
utilities or of heating, ventilating or air-conditioning (either during or after
such work) unless prior written arrangements satisfactory to Landlord are made
with respect thereto; (e) be completed promptly and in a good and workmanlike
manner and in compliance with, and subject to, all of the provisions of Article
2 of Exhibit C hereof; and (f) not disturb Landlord or other tenants in the
Building. After completion of any alterations to the Premises, Tenant will
deliver to Landlord a copy of "as built" plans and specifications depicting and
describing such alterations.
SECTION 10.3 All Leasehold Improvements, alterations and other physical
additions made to or installed by or for Tenant in the Premises shall be and
remain Landlord's property (except for Tenant's furniture, personal property and
movable trade fixtures) and shall not be removed without Landlord's written
consent. Tenant agrees to remove, at its sole cost and expense, all of Tenant's
furniture, personal property and movable trade fixtures, and, if directed to or
permitted to do so by Landlord in writing, all, or any part of, the Leasehold
Improvements, alterations and other physical additions made by or on behalf of
Tenant to the Premises (including, without limitation, all cabling and wiring
for computer systems, telephones and the like whether located above the finished
ceiling or underneath the floor), on or before the Expiration Date or any
earlier date of termination of this Lease. Tenant shall repair, or promptly
reimburse Landlord for the cost of repairing, all damage done to the Premises or
the Building by such removal. Any Leasehold Improvements, alterations or
physical additions made by or on behalf of Tenant which Landlord does not direct
or permit Tenant to remove at any time during or at the end of the Term shall
become the property of Landlord at the end of the Term without any payment to
Tenant. If Tenant fails to remove any of Tenant's furniture, personal property
or movable trade fixtures by the Expiration Date or any sooner date of
termination of the Lease or, if Tenant fails to remove any Leasehold
Improvements, alterations and other physical additions made by Tenant to the
Premises which Landlord has in writing directed Tenant to remove (including,
without limitation, all cabling and wiring for computer systems, telephones and
the like whether located above the finished ceiling or underneath the floor),
Landlord shall have the right, on the fifth (5th) day after Landlord's delivery
of written notice to Tenant to deem such property abandoned by Tenant and to
remove, store, sell, discard or otherwise deal with or dispose of such abandoned
property in a commercially reasonable manner. Tenant shall be liable for all
costs of such disposition of Tenant's abandoned property, and Landlord shall
have no liability to Tenant in any respect regarding such property of Tenant.
The provisions of this Section 10.3 shall survive the expiration or any earlier
termination of this Lease. Tenant hereby appoints Landlord as the
attorney-in-fact for Tenant and authorizes Landlord, as such attorney-in-fact,
to execute on behalf of Tenant any xxxx of sale or other document which Landlord
may deem necessary to evidence the conveyance of such property.
ARTICLE 11
LIENS
SECTION 11.1 Tenant shall keep the Project, the Building and the Premises
and Landlord's interest therein free from any liens arising from any work
performed, materials furnished, or obligations incurred by, or on behalf of
Tenant (other than by Landlord pursuant to Exhibit C). Notice is hereby given
that neither Landlord nor any mortgagee or lessor of Landlord shall be liable
for any labor or materials furnished to Tenant except as furnished to Tenant by
Landlord pursuant to Exhibit C. If any lien is filed for such work or materials,
such lien shall encumber only Tenant's interest in leasehold improvements on the
Premises. Within ten (10) days after Tenant learns of the filing of any such
lien, Tenant shall notify Landlord of such lien and shall either discharge and
cancel such lien of record or post a bond sufficient under the laws of the State
of Georgia to cover the amount of the lien claim plus any penalties, interest,
attorneys' fees, court costs, and other legal expenses in connection with such
lien. If Tenant fails to so discharge or bond such lien within ten (10) calendar
days after written demand from Landlord, Landlord shall have the right, at
Landlord's option, to pay the full amount of such lien without inquiry into the
validity thereof, and Landlord shall be promptly reimbursed by Tenant, as
Additional Rent, for all amounts so paid by Landlord, including expenses,
interest, and attorneys' fees.
ARTICLE 12
USE AND COMPLIANCE WITH LAWS
SECTION 12.1 The Premises shall be used only for executive and
administrative offices for the conduct of Tenant's business limited to the uses
specifically set forth in Section 1.1 and for no other purposes whatsoever.
Tenant shall use and maintain the Premises in a clean, careful, safe, lawful and
proper manner and shall not allow within the Premises, any offensive noise,
odor, conduct or private or public nuisance or permit Tenant's employees,
agents, licensees or invitees to create a public or private nuisance or act in a
disorderly manner within the Building or in the Project. Any statement as to the
particular nature of the business to be conducted by Tenant in the Premises and
uses to be made thereof by Tenant as set forth in Section 1.1 hereof shall not
constitute a representation or warranty by Landlord that such business or uses
are lawful or permissible under any certificate or occupancy for the Premises or
the Building or are otherwise permitted by law. Landlord does, however,
represent that any certificate of occupancy issued with respect to the Premises
shall allow use for executive and administrative offices.
SECTION 12.2 Tenant shall, at Tenant's sole expense, (a) comply with all
laws, orders, ordinances, and regulations of federal, state, county, and
municipal authorities having jurisdiction over the Premises, including, without
limitation, the Americans With Disabilities Act, (b) comply with any directive,
11
order or citation made pursuant to law by any public officer requiring abatement
of any nuisance or which imposes upon Landlord or Tenant any duty or obligation
arising from Tenant's occupancy or use of the Premises or from conditions which
have been created by or at the request or insistence of Tenant, or required by
reason of a breach of any of Tenant's obligations hereunder or by or through
other fault of Tenant, (c) comply with all insurance requirements applicable to
the Premises and (d) indemnify and hold Landlord harmless from any loss, cost,
claim or expense which Landlord incurs or suffers by reason of Tenant's failure
to comply with its obligations under clauses (a), (b) or (c) above. If Tenant
receives notice of any such directive, order citation or of any violation of any
law, order, ordinance, regulation or any insurance requirement, Tenant shall
promptly notify Landlord in writing of such alleged violation and furnish
Landlord with a copy of such notice.
SECTION 12.3 Tenant shall not use or permit the use of the Premises or any
portion of the Project for the storage, treatment, use, production or disposal
of any hazardous substances or hazardous waste (as those terms are defined under
CERCLA or RCRA or any other applicable federal, state or local environmental
protection laws), except in strict compliance with applicable environmental
protection laws. Tenant does hereby indemnify and hold Landlord harmless from
and against any and all damage to any property, penalties, expenses, claims,
losses or liabilities or injury to or death of any person as a result of
Tenant's violation of the foregoing provision. Tenant's indemnity shall include
the obligation to reimburse Landlord for any and all costs and expenses
(including reasonable attorneys' fees) incurred by Landlord, its agents or
employees as a result of Tenant's violation.
ARTICLE 13
DEFAULT AND REMEDIES
SECTION 13.1 The occurrence of any one or more of the following events
shall constitute an Event of Default (herein so called) of Tenant under this
Lease: (a) if Tenant fails to pay any Rent hereunder as and when such Rent
becomes due and such failure shall continue for more than five (5) days after
Landlord gives Tenant notice of past due Rent; (b) if Tenant fails to pay Rent
on time more than twice in any period of twelve (12) months, notwithstanding
that such payments have been made within the applicable cure period; (c) if the
Premises become vacant, deserted, or abandoned for more than ten (10)
consecutive days or if Tenant fails to take possession of the Premises on the
Commencement Date or promptly thereafter; (d) if Tenant permits to be done
anything which creates a lien upon the Premises and fails to discharge or bond
such lien or post such security with Landlord as is required by Article 11; (e)
if Tenant violates the provisions of Article 8 by attempting to make an
unpermitted assignment or sublease; (f) if Tenant fails to maintain in force all
policies of insurance required by this Lease and such failure shall continue for
more than ten (10) days after Landlord gives Tenant notice of such failure; (g)
if any petition is filed by or against Tenant or any guarantor of this Lease
under any present or future section or chapter of the Bankruptcy Code, or under
any similar law or statute of the United States or any state thereof (which, in
the case of an involuntary proceeding, is not permanently discharged, dismissed,
stayed, or vacated, as the case may be, within sixty (60) days of commencement),
or if any order for relief shall be entered against Tenant or any guarantor of
this Lease in any such proceedings; (h) if Tenant or any guarantor of this Lease
becomes insolvent or makes a transfer in fraud of creditors or makes an
assignment for the benefit of creditors; (i) if a receiver, custodian, or
trustee is appointed for the Premises or for all or substantially all of the
assets of Tenant or of any guarantor of this Lease, which appointment is not
vacated within sixty (60) days following the date of such appointment; (j) if
Tenant fails to perform or observe any other terms of this Lease and such
failure shall continue for more than ten (10) days after Landlord gives Tenant
notice of such failure, or, if such failure cannot be corrected within such ten
(10) day period, if Tenant does not commence to correct such default within said
ten (10) day period and thereafter diligently prosecute the correction of same
to completion within a reasonable time and in any event prior to the time a
failure to complete such correction could cause Landlord to be subject to
prosecution for violation of any law, rule, ordinance or regulation or causes,
or could cause, a default under any mortgage, underlying lease, tenant leases or
other agreements applicable to the Project; or (k) if Tenant fails to perform
any term (other than the payment of Rent) of this Lease more than three (3)
times in any period of twelve (12) months, notwithstanding that Tenant has
corrected any previous failures within the applicable cure period.
SECTION 13.2 Upon the occurrence of any Event of Default, Landlord shall
have the right, at Landlord's option, to elect to do any one or more of the
following without further notice or demand to Tenant: (a) terminate this Lease,
in which event Tenant shall immediately surrender the Premises to Landlord, and,
if Tenant fails to so surrender, Landlord shall have the right, without notice,
to enter upon and take possession of the Premises and to expel or remove Tenant
and its effects without being liable for prosecution or any claim for damages
therefor; and Tenant shall, and hereby agrees to, indemnify Landlord for all
loss and damage which Landlord suffers by reason of such termination, including
damages in an amount equal to the total of (1) the costs of recovering the
Premises and all other expenses incurred by Landlord in connection with Tenant's
default; (2) the unpaid Rent earned as of the date of termination, plus interest
at the Interest Rate; (3) all other sums of money and damages owing by Tenant to
Landlord, and (4) an amount which, at the date of such termination represents
the present value (determined by using a discount rate equal to the then average
rate for Xxxxx'x "AAA" rated corporate bonds with maturities equal to the
Remaining Term (as hereinafter defined)) of the excess, if any, of (i) the Rent,
Base Rent, Additional Rent, and all other charges and sums which would have been
payable hereunder by Tenant for the period commencing with the day following the
date of such termination and ending with the stated expiration date of the Term,
as extended (hereinafter referred to as the "Remaining Term"), over (ii) the
aggregate reasonable rental value of the Premises for the same period, all of
which present value of such excess sum shall be deemed immediately due and
payable (in determining the aggregate reasonable rental value pursuant to item
(ii) above, the parties hereby agree that all relevant factors shall be
considered as of the time Landlord seeks to enforce such remedy, including, but
not limited to, (A) the length of time remaining in the Term of this Lease, (B)
the then-current market conditions in the general area in which the Premises are
12
located, (C) the likelihood of reletting the Premises for a period of time equal
to the Remaining Term, (D) the net effective rental rates (taking into account
all concessions) then being obtained for space of similar type and size in
similar type buildings in the general area in which the Premises are located,
(E) [Intentionally Omitted], (F) the anticipated duration of the period the
Premises will be unoccupied prior to reletting, and (G) the anticipated cost of
reletting; such payment shall be and constitute Landlord's liquidated damages,
Landlord and Tenant acknowledging and agreeing that it is difficult to determine
the actual damages Landlord would suffer from Tenant's default and that the
agreed upon liquidated damages are not punitive or penalties and are just, fair
and reasonable); or (b) enter upon and take possession of the Premises without
terminating this Lease and without being liable to prosecution or any claim for
damages therefor, and, if Landlord elects, relet the Premises on such terms as
Landlord deems advisable, in which event Tenant shall pay to Landlord on demand
the cost of repossession, renovating, repairing and altering the Premises for a
new tenant or tenants and any deficiency between the Rent payable hereunder and
the rent paid under such reletting; provided, however, that Tenant shall not be
entitled to any excess payments received by Landlord from such reletting.
Landlord's failure or inability to relet the Premises shall not release or
affect Tenant's liability for Rent or for damages; or (c) enter the Premises
without terminating this Lease and without being liable for prosecution or any
claim for damages therefor and maintain the Premises and repair or replace any
damage thereto or do anything for which Tenant is responsible hereunder. Tenant
shall reimburse Landlord immediately upon demand for any expenses which Landlord
incurs in thus effecting Tenant's compliance under this Lease, and Landlord
shall not be liable to Tenant for any damages with respect thereto.
SECTION 13.3 No agreement to accept a surrender of the Premises and no act
or omission by Landlord or Landlord's agents during the Term shall constitute an
acceptance or surrender of the Premises unless made in writing and signed by
Landlord. No re-entry or taking possession of the Premises by Landlord shall
constitute an election by Landlord to terminate this Lease unless a written
notice of such intention is given to Tenant. No provision of this Lease shall be
construed as an obligation upon Landlord to mitigate Landlord's damages under
the Lease.
SECTION 13.4 No provision of this Lease shall be deemed to have been waived
by Landlord unless such waiver is in writing and signed by Landlord. Landlord's
acceptance of Rent following an Event of Default hereunder shall not be
construed as a waiver of such Event of Default. No custom or practice which may
grow up between the parties in connection with the terms of this Lease shall be
construed to waive or lessen Landlord's right to insist upon strict performance
of the terms of this Lease, without a written notice thereof to Tenant from
Landlord.
SECTION 13.5 The rights granted to Landlord in this Article 13 shall be
cumulative of every other right or remedy provided in this Lease or which
Landlord may otherwise have at law or in equity or by statute, and the exercise
of one or more rights or remedies shall not constitute an election of remedies,
prejudice or impair the concurrent or subsequent exercise of other rights or
remedies or constitute a forfeiture or waiver of Rent or damages accruing to
Landlord by reason of any Event of Default under this Lease. Tenant agrees to
pay to Landlord all costs and expenses incurred by Landlord in the enforcement
of this Lease, including all attorneys' fees incurred in connection with the
collection of any sums due hereunder or the enforcement of any right or remedy
of Landlord.
ARTICLE 14
INSURANCE
SECTION 14.1
A. Tenant, at its sole expense, shall obtain and keep in force during the
Term the following insurance: (a) "All Risk" insurance insuring the Leasehold
Improvements, Tenant's interest in the Premises and all property located in the
Premises, including furniture, equipment, fittings, installations, fixtures,
supplies and any other personal property, leasehold improvements and alterations
("Tenant's Property"), in an amount equal to the full replacement value, it
being understood that no lack or inadequacy of insurance by Tenant shall in any
event make Landlord subject to any claim by virtue of any theft of or loss or
damage to any uninsured or inadequately insured property; (b) Business
Interruption insurance in an amount that will reimburse Tenant for direct or
indirect loss of earnings attributable to all perils insured against under
Section 14.1(a) or attributable to the prevention of access to the Premises by
civil authority; and sufficient to reimburse Tenant for Rent in the event of a
casualty to, or temporary taking of, the Building or the Premises; (c)
Commercial general liability insurance written on an occurrence basis including
personal injury, bodily injury, broad form property damage, operations hazard,
owner's protective coverage, contractual liability, with a cross liability
clause and a severability of interests clause to cover Tenant's indemnities set
forth herein, and products and completed operations liability, in limits not
less than $3,000,000.00 inclusive per occurrence or such higher limits as
Landlord may require from time to time during the Term; (d) Worker's
Compensation and Employer's Liability insurance, with a waiver of subrogation
endorsement, in form and amount as required by applicable law; and (e) In the
event Tenant performs any repairs or alterations in the Premises, Builder's Risk
insurance on an "All Risk" basis (including collapse) on a completed value
(non-reporting) form for full replacement value covering all work incorporated
in the Building and all materials and equipment in or about the Premises; (f)
tenant's "All Risk" Legal Liability insurance for the replacement cost value of
the Premises; and (g) any other form or forms of insurance or any changes or
endorsements to the insurance required herein as Landlord, or any mortgagee or
lessor of Landlord may require, from time to time, in form or in amount.
13
B. Tenant shall have the right to include the insurance required by Section
14.1A under Tenant's policies of "blanket insurance," provided that no other
loss which may also be insured by such blanket insurance shall affect the
insurance coverages required hereby and further provided that Tenant delivers to
Landlord a certificate specifically stating that such coverages apply to
Landlord, the Premises and the Project. All such policies of insurance or
certificates thereof shall name Landlord, Landlord's manager, and all mortgagees
and lessors of Landlord, of which Tenant has been notified, additional insureds,
all as their respective interest may appear. All such policies or certificates
shall be issued by insurers acceptable to Landlord and in form satisfactory to
Landlord. Tenant shall deliver to Landlord certificates with copies of policies,
together with satisfactory evidence of payment of premiums for such policies, by
the Commencement Date and, with respect to renewals of such policies, not later
than thirty (30) days prior to the end of the expiring term of coverage. Upon
Landlord's request Tenant shall deliver to Landlord certified copies of such
policies. All policies of insurance shall be primary and Tenant shall not carry
any separate or additional insurance concurrent in form or contributing in the
event of any loss or damage with any insurance required to be maintained by
Tenant under this Lease. All such policies and certificates shall contain an
agreement by the insurers that the policies will not be invalidated as they
affect the interests of Landlord and Landlord's mortgagees by reason of any
breach or violation of warranties, representations, declarations or conditions
contained in the policies and that the insurers shall notify Landlord and any
mortgagee or lessor of Landlord in writing, by Registered U.S. mail, return
receipt requested, not less than forty-five (45) days before any material
change, reduction in coverage, cancellation, including cancellation for
nonpayment of premium, or other termination thereof or change therein and shall
include a clause or endorsement denying the insurer any rights or subrogation
against Landlord, if such clause or endorsement is available without additional
cost to Tenant.
SECTION 14.2 Landlord shall insure the Building against damage with
casualty and commercial general liability insurance, all in such amounts and
with such deductible as Landlord reasonably deems appropriate. Notwithstanding
any contribution by Tenant to the cost of insurance premiums, as provided
hereinabove, Landlord shall not be required to carry insurance of any kind on
Tenant's Property, and Tenant hereby agrees that Tenant shall have no right to
receive any proceeds from any insurance policies carried by Landlord.
SECTION 14.3 Tenant shall not knowingly conduct or permit to be conducted
in the Premises any activity, or place any equipment in or about the Premises or
the Building, which will invalidate the insurance coverage in effect or increase
the rate of casualty insurance or other insurance on the Premises or the
Building, and Tenant shall comply with all requirements and regulations of
Landlord's casualty and liability insurer. If any invalidation of coverage or
increase in the rate of casualty insurance or other insurance occurs or is
threatened by any insurance company due to any act or omission by Tenant, or its
agents, employees, representatives, or contractors, such statement or threat
shall be conclusive evidence that the increase in such rate is due to such act
of Tenant or the contents or equipment in or about the Premises, and, as a
result thereof, Tenant shall be liable for such increase and such amount shall
be considered Additional Rent payable with the next monthly installment of Base
Rent due under this Lease. In no event shall Tenant introduce or permit to be
kept on the Premises or brought into the Building any dangerous, noxious,
radioactive or explosive substance.
SECTION 14.4 Landlord and Tenant each hereby waive any right of subrogation
and right of recovery or cause of action for injury or loss to the extent that
such injury or loss is covered by fire, extended coverage, "All Risk" or similar
policies covering real property or personal property (or which would have been
covered if Tenant was carrying the insurance required by this Lease). Said
waivers shall be in addition to, and not in limitation or derogation or, any
other waiver or release contained in this Lease. Written notice of the terms of
the above mutual waivers shall be given to the insurance carriers of Landlord
and Tenant and the parties' insurance policies shall be properly endorsed, if
necessary, to prevent the invalidation of said policies by reason of such
waivers.
ARTICLE 15
DAMAGE BY FIRE OR OTHER CAUSE
SECTION 15.1 If the Building or any portion thereof is damaged or destroyed
by any casualty to the extent that, in Landlord's reasonable judgment, (a)
repair of such damage or destruction would not be economically feasible, or (b)
the damage or destruction to the Building cannot be repaired within three
hundred sixty (360) days after the date of such damage or destruction, or if the
proceeds from insurance remaining after any required payment to any mortgagee or
lessor of Landlord are insufficient to repair such damage or destruction, then
both Landlord and Tenant shall have the right to terminate this Lease by giving
written notice of such termination to the other within sixty (60) days after the
date of such damage or destruction.
SECTION 15.2 If the Premises or any portion thereof is damaged or destroyed
by any casualty against which Tenant is required to be insured under Section
14.1, and if, in Landlord's reasonable opinion, the Premises cannot be rebuilt
or made fit for Tenant's purposes within one hundred eighty days (180) after the
date of such damage or destruction, or if the proceeds from the insurance Tenant
is required to maintain pursuant to Article 14 hereof (or the amount of proceeds
which would have been available if Tenant was carrying such insurance) are
insufficient to repair such damage or destruction, then either Landlord or
Tenant shall have the right, at the option of either party, to terminate this
Lease by giving the other written notice, within sixty (60) days after such
damage or destruction.
SECTION 15.3 In the event of partial destruction or damage to the Building
or the Premises which is not subject to Section 15.1 or 15.2 or which is subject
to Section 15.1 or 15.2 but the applicable party (or parties) does not elect to
terminate the Lease, but which renders the Premises partially but not wholly
14
untenantable, this Lease shall not terminate and Rent, including Tenant's
Operating Costs Payment, shall be abated in proportion to the area of the
Premises which, in Landlord's reasonable opinion, cannot be used or occupied by
Tenant as a result of such casualty. Landlord shall in such event, within a
reasonable time after the date of such destruction or damage, subject to force
majeure (as defined in Section 25.6) or to Tenant Delay and to the extent and
availability of insurance proceeds, restore the Premises to as near the same
condition as existed prior to such partial damage or destruction, provided that
Tenant pays to Landlord Tenant's insurance proceeds as required in Section 15.5.
In no event shall Rent xxxxx or shall any termination occur if damage to or
destruction of the Premises is the result of the negligence or willful act of
Tenant, or Tenant's agents, employees, representatives, contractors, successors,
assigns, licensees or invitees.
SECTION 15.4 If the Building or the Premises or any material portion
thereof is destroyed by fire or other causes at any time during the last year of
the Term, then either Landlord or Tenant shall have the right, at the option of
either party, to terminate this Lease by giving written notice to the other
within sixty (60) days after the date of such destruction.
SECTION 15.5 Landlord shall have no liability to Tenant for inconvenience,
loss of business, or annoyance arising from any repair of any portion of the
Premises or the Building. If Landlord is required by this Lease or by any
mortgagee or lessor of Landlord to repair or if Landlord undertakes to repair,
Tenant shall pay to Landlord that amount of Tenant's insurance proceeds (or the
amount which would have been received by Tenant if Tenant was carrying the
insurance required by this Lease) which insures such damage as a contribution
towards such repair, and Landlord shall use reasonable efforts to have such
repairs made promptly and in a manner which will not unnecessarily interfere
with Tenant's occupancy.
SECTION 15.6 In the event of termination of this Lease pursuant to Sections
15.1, 15.2, or 15.4, then all Rent shall be apportioned and paid to the date on
which possession is relinquished or the date of such damage, whichever last
occurs, and Tenant shall immediately vacate the Premises according to such
notice of termination; provided, however, that those provisions of this Lease
which are designated to cover matters of termination and the period thereafter
shall survive the termination hereof.
ARTICLE 16
CONDEMNATION
SECTION 16.1 In the event the whole or substantially the whole of the
Building or the Premises are taken or condemned by eminent domain or by any
conveyance in lieu thereof (such taking, condemnation or conveyance in lieu
thereof being hereinafter referred to as "condemnation"), the Term shall cease
and this Lease shall terminate on the earlier of the date the condemning
authority takes possession or the date title vests in the condemning authority.
SECTION 16.2 In the event any portion of the Building shall be taken by
condemnation (whether or not such taking includes any portion of the Premises),
which taking, in Landlord's judgment, is such that the Building cannot be
restored in an economically feasible manner for use substantially as originally
designed, then Landlord shall have the right, at Landlord's option, to terminate
this Lease, effective as of the date specified by Landlord in a written notice
of termination from Landlord to Tenant.
SECTION 16.3 In the event any portion of the Parking Facilities shall be
taken by condemnation, which taking in Landlord's judgment is such that the
Parking Facilities cannot be restored in an economically feasible manner for use
substantially as originally designed, including in such consideration the
possible use of additional parking facilities in the vicinity of the Building,
then Landlord shall have the right, at Landlord's option, to terminate this
Lease, effective as of the date specified by Landlord in a written notice of
termination from Landlord to Tenant.
SECTION 16.4 In the event that a portion, but less than substantially the
whole, of the Premises shall be taken by condemnation, then this Lease shall be
terminated as of the date of such condemnation as to the portion of the Premises
so taken, and unless Landlord exercises its option to terminate this Lease
pursuant to Section 16.2, this Lease shall remain in full force and effect as to
the remainder of the Premises.
SECTION 16.5 In the event of termination of this Lease pursuant to the
provisions of Section 16.1, 16.2, or 16.3, the Rent shall be apportioned as of
such date of termination; provided, however, that those provisions of this Lease
which are designated to cover matters of termination and the period thereafter
shall survive the termination hereof.
SECTION 16.6 All compensation awarded or paid upon a condemnation of any
portion of the Project shall belong to and be the property of Landlord without
participation by Tenant, and Tenant shall have no claim against Landlord or
against the condemning authority for the value of its interest under this Lease
or for the value of the Lease over the unexpired term. Nothing herein shall be
construed, however, to preclude Tenant from prosecuting any claim directly
against the condemning authority for loss of business, loss of good will, moving
expenses, damage to, and cost of removal of, trade fixtures, furniture and other
personal property belonging to Tenant; provided, however, that Tenant shall make
no claim which shall diminish or adversely affect any award claimed or received
by Landlord.
15
SECTION 16.7 If any portion of the Project other than the Building is taken
by condemnation or if the temporary use or occupancy of all or any part of the
Premises shall be taken by condemnation during the Term, this Lease shall be and
remain unaffected by such condemnation, and Tenant shall continue to pay in full
the Rent payable hereunder. In the event of any such temporary taking for use or
occupancy of all or any part of the Premises, Tenant shall be entitled to
appear, claim, prove and receive the portion of the award for such taking that
represents compensation for use or occupancy of the Premises during the Term and
Landlord shall be entitled to appear, claim, prove and receive the portion of
the award that represents the cost of restoration of the Premises and the use or
occupancy of the Premises after the end of the Term hereof. In the event of any
such condemnation of any portion of the Project other than the Building,
Landlord shall be entitled to appear, claim, prove and receive all of that
award.
ARTICLE 17
INDEMNIFICATION
SECTION 17.1 Tenant hereby waives all claims against Landlord for damage to
any property or injury to, or death of, any person in, upon, or about the
Project, including the Premises, arising at any time and from any cause other
than by reason of the gross negligence or willful misconduct of Landlord, its
agents, employees, representatives, or contractors. Tenant shall, and hereby
agrees to, indemnify and hold Landlord harmless from any damage to any property
or injury to, or death of, any person arising from the use or occupancy of the
Common Areas and the Premises by Tenant, its agents, employees, representatives,
contractors, successors, assigns, licensees, or invitees, unless such damage is
caused by the gross negligence or willful misconduct of Landlord, its agents,
employees, representatives, or contractors. Without limiting the generality of
the foregoing, Landlord shall not be liable for any injury or damage to persons
or property resulting from the condition or design of, or any defective,
Building or its mechanical systems or equipment which may exist or occur or from
any fire, explosion, falling plaster, steam, gas, electricity, water, rain,
flood, snow, or leaks from any part of the Premises or from the pipes,
appliances, plumbing works, roof, or subsurface of any floor or ceiling, or from
the street or any other place, or by dampness or by any other similar cause
unless the same is caused by the gross negligence or willful misconduct of
Landlord, its agents, employees, representatives or contractors. Landlord shall
not be liable for any such damage caused by other tenants or persons in the
Building or by occupants of adjacent property thereto, or by the public, or
caused by construction (unless caused solely by the negligence or willful
misconduct of Landlord) or by any private, public or quasi-public work. Tenant,
for itself and its agents, employees, representatives, contractors, successors,
assigns, invitees and licensees, expressly assumes all risks of injury or damage
to person or property, whether proximate or remote, resulting from the condition
of the Project or any part thereof. Tenant's foregoing indemnity shall include
attorneys' fees, investigation costs, and all other reasonable costs and
expenses incurred by Landlord in any connection therewith. The provisions of
this Article 17 shall survive the expiration or termination of this Lease with
respect to any damage, injury, or death occurring before such expiration or
termination. If Landlord is made a party to any litigation commenced by or
against Tenant or relating to this Lease or to the Premises, and provided that
in any such litigation Landlord is not finally adjudicated to be solely at
fault, then Tenant shall pay all costs and expenses, including attorneys' fees
and court costs, incurred by or imposed upon Landlord because of any such
litigation, and the amount of all such costs and expenses, including attorneys'
fees and court costs, shall be a demand obligation owing by Tenant to Landlord.
Notwithstanding anything in this Article 17 to the contrary, Landlord shall not
be liable to Tenant for any claims resulting from the negligence or willful
misconduct of Landlord, its agents, employees, representatives, or contractors
to the extent such claims are covered by the types of insurance Tenant is to
maintain pursuant to Section 14.1A.
SECTION 17.2 Landlord shall, and hereby agrees to, indemnify and hold
Tenant harmless from any damages in connection with loss of life, bodily or
personal injury or property damage arising from any occurrence in the Common
Areas of the Project when not solely the result of the negligence or willful
misconduct of Tenant and to the extent not covered by Tenant's insurance.
ARTICLE 18
SUBORDINATION AND ESTOPPEL CERTIFICATES
SECTION 18.1 This Lease and all rights of Tenant hereunder are subject and
subordinate to all underlying leases now or hereafter in existence, and to any
supplements, amendments, modifications, and extensions of such leases heretofore
or hereafter made and to any deeds to secure debt, mortgages, or other security
instruments which now or hereafter cover all or any portion of the Project or
any interest of Landlord therein, and to any advances made on the security
thereof, and to any increases, renewals, modifications, consolidations,
replacements, and extensions of any of such mortgages. This provision is
declared by Landlord and Tenant to be self-operative and no further instrument
shall be required to effect such subordination of this Lease. Upon demand,
however, Tenant shall execute, acknowledge, and deliver to Landlord any further
instruments and certificates evidencing such subordination as Landlord, and any
mortgagee or lessor of Landlord shall reasonably require, and if Tenant fails to
so execute, acknowledge and deliver such instruments within ten (10) days after
Landlord's request, Landlord is hereby empowered to do so in Tenant's name and
on Tenant's behalf. In the event Tenant fails to so execute, acknowledge and
deliver such instruments within ten (10) days after Landlord's request, Tenant
hereby irrevocably appoints Landlord as Tenant's agent and attorney-in-fact for
the purpose of executing, acknowledging, and delivering any such instruments and
certificates. Tenant shall not unreasonably withhold, delay, or defer its
written consent to reasonable modifications in this Lease which are a condition
of any construction, interim or permanent financing for the Project or any
16
reciprocal easement agreement with facilities in the vicinity of the Building,
provided that such modifications do not increase the obligations of Tenant
hereunder or materially and adversely affect Tenant's use and enjoyment of the
Premises. This Lease is further subject and subordinate to: (a) all applicable
ordinances of any government authority having jurisdiction over the Project,
relating to easements, franchises, and other interests or rights upon, across,
or appurtenant to the Project; and (b) all utility easements and agreements,
which now or hereafter benefit or burden the Project.
SECTION 18.2 Notwithstanding the generality of the foregoing provisions of
Section 18.1, any mortgagee or lessor of Landlord shall have the right at any
time to subordinate any such mortgage or underlying lease to this Lease, or to
any of the provisions hereof, on such terms and subject to such conditions as
such mortgagee or lessor of Landlord may consider appropriate in its discretion.
At any time, before or after the institution of any proceedings for the
foreclosure of any such mortgage, or the sale of the Building under any such
mortgage, or the termination of any underlying lease, Tenant shall, upon request
of such mortgagee or any person or entities succeeding to the interest of such
mortgagee or the purchaser at any foreclosure sale ("Successor Landlord"),
automatically become the Tenant (or if the Premises has been validly subleased,
the subtenant) of the Successor Landlord, without change in the terms or other
provisions of this Lease (or, in the case of a permitted sublease, without
change in this Lease or in the instrument setting forth the terms of such
sublease); provided, however, that the Successor Landlord shall not be (i) bound
by any payment made by Tenant of Rent or Additional Rent for more than one (1)
month in advance, except for a Security Deposit previously paid to Landlord (and
then only if such Security Deposit has been deposited with and is under the
control of the Successor Landlord), (ii) bound by any termination, modification,
amendment or surrender of the Lease done without the Successor Landlord's
consent, (iii) liable for any damages or subject to any offset or defense by
Tenant to the payment of Rent by reason of any act or omission of any prior
landlord (including Landlord), or (iv) personally or corporately liable, in any
event, beyond the limitations on landlord liability set forth in Section 25.5 of
this Lease. This agreement of Tenant to attorn to a Successor Landlord shall
survive any such foreclosure sale, trustee's sale conveyance in lieu thereof or
termination of any underlying lease. Tenant shall upon demand at any time,
before or after any such foreclosure or termination execute, acknowledge, and
deliver to the Successor Landlord any written instruments and certificates
evidencing such attornment as such Successor Landlord may reasonably require;
provided, however, that Landlord shall use its reasonable efforts to require
that such agreement provide that upon such attornment as long as Tenant is not
in default hereunder, Tenant's possession of the Premises under this Lease shall
not be disturbed.
SECTION 18.3 Tenant shall, from time to time, within ten (10) days after
request from Landlord, or from any mortgagee or lessor of Landlord, execute,
acknowledge and deliver in recordable form a certificate certifying, to the
extent true, that this Lease is in full force and effect and unmodified (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications); that the Term has commenced and the
full amount of the Rent then accruing hereunder; the dates to which the Rent has
been paid; that Tenant has accepted possession of the Premises and that any
improvements required by the terms of this Lease to be made by Landlord have
been completed to the satisfaction of Tenant; the amount, if any, that Tenant
has paid to Landlord as a Security Deposit; that no Rent under this Lease has
been paid more than thirty (30) days in advance of its due date; that the
address for notices to be sent to Tenant is as set forth in this Lease (or has
been changed by notice duly given and is as set forth in the certificate); that
Tenant, as of the date of such certificate, has no charge, lien, or claim of
offset under this Lease or otherwise against Rent or other charges due or to
become due hereunder; that, to the knowledge of Tenant, Landlord is not then in
default under this Lease; and such other matters as may be reasonably requested
by Landlord or any mortgagee or lessor of Landlord. Any such certificate may be
relied upon by Landlord, any Successor Landlord, or any mortgagee or lessor of
Landlord. Landlord agrees periodically to furnish, when reasonably requested in
writing by Tenant, certificates signed by Landlord containing information
similar to the foregoing information.
SECTION 18.4 No act or failure to act on the part of Landlord which would
entitle Tenant under the terms of this Lease, or by law, to be relieved of
Tenant's obligations hereunder or to terminate this Lease, shall result in a
release of such obligations or a termination of this Lease unless (a) Tenant has
given notice by registered or certified mail to any mortgagee or lessor of
Landlord whose address shall have been furnished to Tenant, and (b) Tenant
offers such mortgagee or lessor of Landlord a reasonable opportunity to cure the
default, including time to obtain possession of the Premises by power of sale or
judicial foreclosure, if such should prove necessary to effect a cure.
ARTICLE 19
SURRENDER OF THE PREMISES
SECTION 19.1 Upon the Expiration Date or earlier termination of this Lease,
or upon any re-entry of the Premises by Landlord without terminating this Lease
pursuant to Section 13.2(b), Tenant, at Tenant's sole cost and expense, shall
peacefully vacate and surrender the Premises to Landlord in good order, broom
clean and in the same condition as at the beginning of the Term or as the
Premises may thereafter have been improved by Landlord or Tenant (provided that
Tenant's improvements were made with Landlord's consent), reasonable use and
wear thereof and repairs which are Landlord's obligations under Articles 9, 15
and 16 only excepted, and Tenant shall remove all of Tenant's Property
(including, without limitation, all cabling and wiring for computer systems,
telephones and the like whether located above the finished ceiling or underneath
the floor), repair any damage resulting from such removal, and turn over all
keys for the Premises to Landlord. Should Tenant continue to hold the Premises
after the expiration or earlier termination of this Lease, such holding over,
unless otherwise agreed to by Landlord in writing, shall constitute and be
17
construed as a tenancy at sufferance at monthly installments of Rent equal to
the greater of one hundred fifty percent (150%) of the monthly portion of Rent
in effect as of the date of expiration or earlier termination or one hundred
fifty percent (150%) of the fair market rental value of the Premises, and
subject to all of the other terms, charges and expenses set forth herein except
any right to renew this Lease or to expand the Premises or any right to
additional services. The foregoing sentence shall in no event be construed to
permit such holding over without Landlord's consent. Tenant shall also be liable
to Landlord for all damages (including consequential damages) which Landlord
suffers because of any holding over by Tenant, and Tenant shall indemnify
Landlord against all claims made by any other tenant or prospective tenant
against Landlord resulting from delay by Landlord in delivering possession of
the Premises to such other tenant or prospective tenant. The provisions of this
Article 19 shall survive the expiration or earlier termination of this Lease.
ARTICLE 20
LANDLORD'S RIGHT TO INSPECT
SECTION 20.1 Landlord shall retain duplicate keys to all doors of the
Premises. Tenant shall provide Landlord with new keys should Tenant receive
Landlord's consent to change the locks. Landlord shall have the right to enter
the Premises at reasonable hours (or, in the event of an emergency, at any hour)
(a) to exhibit the same to present or prospective mortgagees, lessors or
purchasers during the Term and to prospective tenants during the last year of
the Term, (b) to inspect the Premises, (c) to confirm that Tenant is complying
with all of Tenant's covenants and obligations under this Lease, (d) to clean or
make repairs required of Landlord under the terms of this Lease, (e) to make
repairs to areas adjoining the Premises, and (f) to repair and service utility
lines or other components of the Building; provided, however, Landlord shall use
reasonable efforts to minimize interference with Tenant's business. Landlord
shall not be liable to Tenant for the exercise of Landlord's rights under this
Article 20 and Tenant hereby waives any claims for damages for any injury,
inconvenience or interference with Tenant's business, any loss of occupancy or
quiet enjoyment of the Premises, and any other loss occasioned thereby.
ARTICLE 21
SECURITY DEPOSIT
SECTION 21.1 Tenant's Security Deposit shall be held by Landlord, without
liability for interest except to the extent required by law, as security for the
performance of Tenant's obligations under this Lease. Unless required by
applicable law, Landlord shall not be required to keep the Security Deposit
segregated from other funds of Landlord. Tenant shall not assign or in a any way
encumber the Security Deposit. Upon the occurrence of any Event of Default by
Tenant, Landlord shall have the right, without prejudice to any other remedy, to
use the Security Deposit, or portions thereof, to the extent necessary to pay
any arrearages in Rent, and any other damage, injury or expense. Following any
such application of all or any portion of the Security Deposit, Tenant shall pay
to Landlord, on demand, the amount so applied in order to restore the Security
Deposit to its original amount. If Tenant is not in default at the termination
of this Lease, any remaining balance of the Security Deposit shall be returned
to Tenant, provided that Tenant surrenders the Premises without damage pursuant
to Article 19 hereof. If Landlord transfers its interest in the Premises during
the Term, Landlord shall assign the Security Deposit to the transferee, and
thereafter Landlord shall have no further liability to Tenant for the Security
Deposit. In the event of a permitted assignment under this Lease by Tenant, the
Security Deposit shall be held by Landlord as a deposit made by the permitted
assignee and Landlord shall have no further liability with respect to the return
of the Security Deposit to the original Tenant.
ARTICLE 22
BROKERAGE
SECTION 22.1 Tenant and Landlord each represent and warrant to the other
that it has not entered into any agreement with, or otherwise had any dealings
with, any broker or agent in connection with the negotiation or execution of
this Lease which could form the basis of any claim by any such broker or agent
for a brokerage fee or commission, finder's fee, or any other compensation of
any kind or nature in connection herewith, other than with the Brokers
identified in Section 1.1(R), and each party shall, and hereby agrees to,
indemnify and hold the other harmless from all costs (including court costs,
investigation costs, and attorneys' fees), expenses, or liability for
commissions or other compensation claimed by any broker or agent with respect to
this Lease which arise out of any agreement or dealings, or alleged agreement or
dealings, between the indemnifying party and any such agent or broker, other
than with the Brokers identified in Section 1.1(R). This provision shall survive
the expiration or earlier termination of this Lease.
ARTICLE 23
OBSERVANCE OF RULES AND REGULATIONS
SECTION 23.1 Tenant and Tenant's servants employees, agents, visitors, and
licensees shall observe faithfully and comply strictly with all Rules and
18
Regulations (herein so called) attached to this Lease as such Rules and
Regulations may be changed from time to time. Landlord shall at all times have
the right to make reasonable changes in and additions to such Rules and
Regulations; provided Landlord gives Tenant prior notice of such changes and
provided that such new rules and regulations or changes in existing rules and
regulations do not conflict with this Lease, and do not materially interfere
with the lawful conduct of Tenant's business in the Premises. Any failure by
Landlord to enforce any of the Rules and Regulations now or hereafter in effect,
either against Tenant or any other tenant in the Building, shall not constitute
a waiver of any such Rules and Regulations. Landlord shall not be liable to
Tenant for the failure or refusal by any other tenant, guest, invitee, visitor,
or occupant of the Building to comply with any of the Rules and Regulations.
ARTICLE 24
NOTICES
SECTION 24.1 All notices, consents, demands, requests, documents, or other
communications (other than payment of Rent) required or permitted hereunder
(collectively, "notices") shall be deemed given, whether actually received or
not, when dispatched for hand delivery or delivery by next-day express courier
(with signed receipts) to the other party, or on the second Business Day after
deposit in the United States mail, postage prepaid, certified, return receipt
requested, except for notice of change of address which shall be deemed given
only upon actual receipt. The addresses of the parties for notices are set forth
in Article 1, or any such other addresses subsequently specified by each party
in notices given pursuant to this Section 24.1. Tenant hereby designates and
appoints as its agent to receive notice of all dispossessory or distraint
proceedings the person in charge of the Premises at the time said notice is
given or occupying the Premises at said time; and if no person is in charge or
occupying the Premises, then such service or notice may be made by attaching the
same, in lieu of mailing, on the main entrance to the Premises.
ARTICLE 25
MISCELLANEOUS
SECTION 25.1 PROFESSIONAL FEES. In any action or proceeding brought by
either party against the other under this Lease, the prevailing party shall be
entitled to recover from the other party its professional fees for attorneys,
appraisers and accountants, its investigation costs, and any other legal
expenses and court costs incurred by the prevailing party in such action or
proceeding.
SECTION 25.2 REIMBURSEMENTS. Wherever the Lease requires Tenant to
reimburse Landlord for the cost of any item, such costs will be the reasonable
and customary charge periodically established by Landlord for such item.
Landlord shall keep in its on-site manager's office a schedule of such charges
(which Landlord may periodically change) for Tenant's examination. The schedule
of charges may include, at the discretion of Landlord, a reasonable allocation
of overhead, administrative, and related costs and a reasonable fee for
Landlord's agent or manager who performs such services or arranges for
performance of such services. All such charges shall be payable upon demand as
Additional Rent.
SECTION 25.3 SEVERABILITY. Every agreement contained in this Lease is, and
shall be construed as, a separate and independent agreement. If any term of this
Lease or the application thereof to any person or circumstances shall be invalid
or unenforceable, the remaining agreements contained in this Lease shall not be
affected.
SECTION 25.4 NON-MERGER. There shall be no merger of this Lease with any
ground leasehold interest or the fee estate in the Project or any part thereof
by reason of the fact that the same person may acquire or hold, directly or
indirectly, this Lease or any interest in this Lease as well as any ground
leasehold interest or fee estate in the Project or any interest in such fee
estate.
SECTION 25.5 LANDLORD'S LIABILITY. Anything contained in this Lease to the
contrary notwithstanding, Tenant agrees that Tenant shall look solely to the
estate and property of Landlord in the Project for the collection of any
judgment or other judicial process requiring the payment of money by Landlord
for any default or breach by Landlord under this Lease, subject, however, to the
prior rights of any mortgagee or lessor of the Project. No other assets of
Landlord or any partners, shareholders, or other principals of Landlord shall be
subject to levy, execution or other judicial process for the satisfaction of
Tenant's claim.
SECTION 25.6 FORCE MAJEURE. Whenever the period of time is herein
prescribed for action to be taken by Landlord or Tenant, Landlord or Tenant
shall not be liable or responsible for, and there shall be excluded from the
computation for any such period of time, any delays due to force majeure, which
term shall include strikes, riots, acts of God, shortages of labor or materials,
war, governmental approvals, laws, regulations, or restrictions, or any other
cause of any kind whatsoever which is beyond the reasonable control of Landlord
or Tenant. Force Majeure shall not excuse or delay Tenant's obligation to pay
Rent or any other amount due under this Lease.
SECTION 25.7 HEADINGS. The article headings contained in this Lease are for
convenience only and shall not enlarge or limit the scope or meaning of the
various and several articles hereof. Words in the singular number shall be held
to include the plural, unless the context otherwise requires. All agreements and
covenants herein contained shall be binding upon the respective heirs, personal
representatives, and successors and assigns of the parties thereto.
19
SECTION 25.8 SUCCESSORS AND ASSIGNS. All agreements and covenants herein
contained shall be binding upon the respective heirs, personal representatives,
successors and assigns of the parties hereto. If there be more than one Tenant,
the obligations hereunder imposed upon Tenant shall be joint and several. If
there is a guarantor of Tenant's obligations hereunder, Tenant's obligations
shall be joint and several obligations of Tenant and such guarantor, and
Landlord need not first proceed against Tenant hereunder before proceeding
against such guarantor, and any such guarantor shall not be released from its
guarantee for any reason, including any amendment of this Lease, any forbearance
by Landlord or waiver of any of Landlord's rights, the failure to give Tenant or
such guarantor any notices, or the release of any party liable for the payment
or performance of Tenant's obligations hereunder. Notwithstanding the foregoing,
nothing contained in this Section 25.8 shall be deemed to override Article 8.
SECTION 25.9 LANDLORD'S REPRESENTATIONS. Neither Landlord nor Landlord's
agents or brokers have made any representations or promises with respect to the
Premises, the Building, the Parking Facilities, the Land, or any other portions
of the Project except as herein expressly set forth and all reliance with
respect to any representations or promises is based solely on those contained
herein. No rights, easements, or licenses are acquired by Tenant under this
Lease by implication or otherwise except as, and unless, expressly set forth in
this Lease.
SECTION 25.10 ENTIRE AGREEMENT; AMENDMENTS. This Lease and the Exhibits and
Riders attached hereto set forth the entire agreement between the parties and
cancel all prior negotiations, arrangements, brochures, agreements, and
understandings, if any, between Landlord and Tenant regarding the subject matter
of this Lease. No amendment or modification of this Lease shall be binding or
valid unless expressed in writing executed by both parties hereto.
SECTION 25.11 TENANT'S AUTHORITY. If Tenant signs as a corporation, limited
partnership or limited liability company, execution hereof shall constitute a
representation and warranty by Tenant that Tenant is a duly organized and
existing corporation, limited partnership or limited liability company, that
Tenant has been and is qualified to do business in the State of Georgia and in
good standing with the State of Georgia, that the corporation, limited
partnership or limited liability company, has full right and authority to enter
into this Lease, and that all persons signing on behalf of the corporation,
limited partnership or limited liability company, were authorized to do so by
appropriate corporate action. If Tenant signs as a general partnership, trust,
or other legal entity, execution hereof shall constitute a representation and
warranty by Tenant that Tenant has complied with all applicable laws, rules, and
governmental regulations relative to Tenant's right to do business in the State
of Georgia, that such entity has the full right and authority to enter into this
Lease, and that all persons signing on behalf of Tenant were authorized to do so
by any and all necessary or appropriate general partnership, trust, or other
actions. Upon the request of Landlord, Tenant shall deliver to Landlord
documentation satisfactory to Landlord evidencing Tenant's compliance with this
Article, and Tenant agrees to promptly execute all necessary and reasonable
applications or documents as reasonably requested by Landlord which may be
required by the jurisdiction in which the Project is located to permit the
issuance of necessary permits and certificates for Tenant's use and occupancy of
the Premises.
SECTION 25.12 GOVERNING LAW. This Lease shall be governed by and construed
under the laws of the State of Georgia. Any action brought to enforce or
interpret this Lease shall be brought in the court of appropriate jurisdiction
in the county where the Building is located. Should any provision of this Lease
require judicial interpretation, Landlord and Tenant hereby agree and stipulate
that the court interpreting or considering same shall not apply the presumption
that the terms hereof shall be more strictly construed against a party by reason
of any rule or conclusion that a document should be construed more strictly
against the party who itself or through its agents prepared the same, it being
agreed that all parties hereto have participated in the preparation of this
Lease and that each party had full opportunity to consult legal counsel of its
choice before the execution of this Lease.
SECTION 25.13 TENANT'S USE OF NAME OF THE BUILDING. Tenant shall not,
without the prior written consent of Landlord, use the name of the Building for
any purpose other than as the address of the business to be conducted by Tenant
in the Premises, and Tenant shall not do or permit the doing of anything in
connection with Tenant's business or advertising (including brokers' flyers
promoting sublease space) which in the reasonable judgment of Landlord may
reflect unfavorably on Landlord or the Building or confuse or mislead the public
as to any apparent connection or relationship between Tenant and Landlord, the
Building, or the Land.
SECTION 25.14 NO EASEMENT FOR LIGHT, AIR OR VIEW. Any elimination or
shutting off of light, air, or view by any structure which may be erected on
lands adjacent to the Building shall in no way affect this Lease and Landlord
shall have no liability to Tenant with respect thereto.
SECTION 25.15 CHANGES TO PROJECT BY LANDLORD. Landlord shall have the
unrestricted right to make changes to all portions of the Project in Landlord's
reasonable discretion for the purpose of improving access or security to the
Project or the flow of pedestrian and vehicular traffic therein. Landlord shall
have the right at any time, without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor, to
change the arrangement or location of entrances or passageways, doors and
doorways, corridors, elevators, stairs, bathrooms, or any other Common Areas so
long as reasonable access to the Premises remains available. Landlord shall also
20
have the right to (a) rearrange, change, expand or contract portions of the
Project constituting Common Areas and to add new improvements thereon (b) to use
Common Areas while engaged in making improvements, repairs or alterations to the
Project, or any portion thereof, and (c) to do and perform such other acts and
make such other changes in to or with respect to the Project, or any portion
thereof, as Landlord may, in the exercise of sound business judgment, deem to be
appropriate. Landlord shall be entitled to change the name or address of the
Building or the Project. Landlord shall have the right to close, from time to
time, the Common Areas and other portions of the Project for such temporary
periods as Landlord deems legally sufficient to evidence Landlord's ownership
and control thereof and to prevent any claim of adverse possession by, or any
implied or actual dedication to, the public or any party other than Landlord.
SECTION 25.16 TIME OF ESSENCE. Time is of the essence of this Lease.
SECTION 25.17 LANDLORD'S ACCEPTANCE OF LEASE. The submission of this Lease
to Tenant shall not be construed as an offer and Tenant shall not have any
rights with respect thereto unless said Lease is consented to by mortgagee, and
any lessor of Landlord, to the extent such consent is required, and Landlord
executes a copy of this Lease and delivers the same to Tenant.
SECTION 25.18 PERFORMANCE BY TENANT. All covenants and agreements to be
performed by Tenant under any of the terms of this Lease shall be performed by
Tenant, at Tenant's sole cost and expense, and without any abatement of Rent. If
Tenant shall fail to pay any Rent, other than Base Rent, required to be paid by
it hereunder or shall fail to perform any other act on its part to be performed
hereunder, and such failure shall continue for longer than the period of cure,
if any, permitted in Section 13.1, Landlord may, at its option, without waiving
or releasing Tenant from obligations of Tenant, make any such payment or perform
any such other act on behalf of Tenant. All sums so paid by Landlord and all
necessary incidental costs, together with interest thereon at the Interest Rate,
from the date of such payment by Landlord, shall be payable to Landlord on
demand. Tenant covenants to pay any such sums, and Landlord shall have (in
addition to any other right or remedy of Landlord) the same rights and remedies
in the event of the non- payment thereof by Tenant as in the case of default by
Tenant in the payment of Rent.
SECTION 25.19 FINANCIAL STATEMENTS. At any time during the term of this
Lease, Tenant shall, upon ten (10) days prior written notice from Landlord,
provide Landlord with a current financial statement and financial statements of
the two (2) years prior to the current financial statement year. Such statement
shall be prepared in accordance with generally accepted accounting principles
and, if such is the normal practice of Tenant, shall be audited by an
independent certified public accountant.
SECTION 25.20 LICENSEE DISCLOSURE. Landlord advises Tenant that Xxxxxxxx
Properties Limited, Inc. ("PPL") is the agent of Landlord in connection with
this Lease and that Landlord is paying PPL a commission in connection with this
Lease. PPL has not represented Tenant in this transaction. To the extent that
another broker is listed in Section 1.1R above, said broker has represented the
tenant in this transaction and has not represented Landlord in this transaction,
but Landlord is paying such other broker a commission in connection with this
Lease.
SECTION 25.21 CONFIDENTIALITY. Tenant hereby acknowledges and agrees with
Landlord that the amount of Rent due and payable under this Lease and all other
terms of this Lease negotiated between Landlord and Tenant shall be and remain
confidential to the parties to this Lease, and Tenant, in consideration of
Landlord's entering into this Lease, hereby agrees with Landlord that Tenant
shall not disclose in any manner to any third party (except as may be required
by law) the amount of the Rent due and payable by Tenant under this Lease or any
of the other terms of this Lease.
SECTION 25.22 HOMESTEAD. Tenant waives all homestead rights and exemptions
which it may have under any law as against any obligation owing under this
Lease, and assigns to Landlord its homestead and exemptions to the extent
necessary to secure payment and performance of its covenants and agreements
hereunder.
SECTION 25.23 LANDLORD'S LIEN. Landlord shall at all times have a valid
first lien upon all of the personal property of Tenant situated in the Premises
to secure payment of rent and other sums and charges due hereunder from Tenant
to Landlord and to secure the performance by Tenant of each of the covenants,
warranties, agreements and conditions hereof. Said personal property shall not
be removed from the Premises without the consent of Landlord until all arrearage
in Rent and other charges, as well as any and all other sums of money due
hereunder shall first have been paid and discharged and until this Lease and all
of the covenants, conditions, agreements and provisions have been fully
performed by Tenant. Tenant shall from time to time execute any financing
statements and other instruments necessary to perfect the security interest
granted herein. The lien herein granted may be foreclosed in the manner and form
provided by law for the foreclosure of security instruments or chattel
mortgages, or in any other manner provided by law. This Lease is intended as and
constitutes a security agreement within the meaning of the Uniform Commercial
Code of the State of Georgia.
SECTION 25.24 WAIVER OF BREACH. No waiver of any breach of the covenants,
warranties, agreements, provisions, or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition or of any subsequent breach thereof, and if any breach shall occur and
after which be compromised, settled or adjusted, this Lease shall continue in
full force and effect as if no breach had occurred.
SECTION 25.25 NO ESTATE. This Lease shall create the relationship of
landlord and tenant only between Landlord and Tenant and no estate shall pass
out of Landlord. Tenant shall have only an usufruct, not subject to levy and
sale and not assignable in whole or in part by Tenant except as herein provided.
SECTION 25.26 WAIVER OF JURY TRIAL. TENANT HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
21
COUNTERCLAIM FILED BY EITHER PARTY, WHETHER IN CONTRACT, TORT OR OTHERWISE,
RELATING DIRECTLY OR INDIRECTLY TO THIS LEASE AND TENANT'S OCCUPANCY OF THE
PREMISES, OR ANY ACTS OR OMISSIONS OF LANDLORD IN CONNECTION THEREWITH.
ARTICLE 26
SUBSTITUTION SPACE
SECTION 26.1 Landlord shall have the right at any time prior to the end of
the Term of this lease, or any renewal or extension hereof, to substitute,
instead of the Premises, other space within the Building, or other buildings
within the Office Park (which space shall have a Net Rentable Area of not less
than the Net Rentable Area in the Premises as of the date of such substitution)
hereinafter called the "Substitution Space". If Landlord desires to exercise
this right but, in Landlord's reasonable opinion there is no suitable
Substitution Space then available in the Office Park, and in the event of
Landlord's redevelopment of the Building, Landlord shall have the right to
terminate this Lease by written notice to Tenant on a date specified by Landlord
which date shall not be sooner than one hundred eighty (180) days after the date
of Landlord's notice to Tenant.
SECTION 26.2 DELETED
SECTION 26.3 If Landlord desires to exercise such right after the
Commencement Date, Landlord shall give Tenant at least sixty (60) days' prior
written notice thereof specifying the effective date of such substitution,
whereupon, as of such effective date: (a) the description of the Premises set
forth in this lease shall, without further act on the part of Landlord or
Tenant, be deemed amended so that the Substitution Space shall, for all
purposes, be deemed the Premises hereunder, and all of the terms, covenants,
conditions, provisions, and agreements of this Lease, including those agreements
to pay Rent, shall continue in full force and effect and shall apply to the
Substitution Space, and (b) Tenant shall move from the present Premises into the
Substitution Space and shall vacate and surrender possession to Landlord of the
present Premises, and if Tenant continues to occupy the present Premises after
such effective date, then thereafter, during the period of such occupancy,
Tenant shall pay Rent for the present Premises as set forth in this Lease, in
addition to the Rent for the Substitution Space at the above- described rates.
Tenant shall accept possession of the Substitution Space in its "as-is"
condition as of such effective date.
SECTION 26.4 Notwithstanding the provisions of Section 26.3 above, if
Landlord exercises its right to substitute the Substitution Space for the
Premises after the Commencement Date, then Tenant shall have the option to
require Landlord to alter the Substitution Space in the same manner as the
present Premises were finished out or altered pursuant to the Lease. Such option
shall be exercised, if at all, by notice from Tenant to Landlord within fifteen
(15) days after the aforesaid notice from Landlord to Tenant of such proposed
substitution; otherwise, such option in favor of Tenant shall be null and void.
Tenant shall not have the right to exercise such option at any time when Tenant
is in default under any of the terms, covenants, conditions, provisions, or
agreements of this Lease. If such option is validly so exercised by Tenant: (a)
Tenant shall continue to occupy the present Premises (upon all of the terms,
covenants, conditions, provisions, and agreements of this Lease, including the
covenant for the payment of Rent) until the date on which Landlord shall have
substantially completed such alteration work in the Substitution Space; and (b)
Tenant shall move from the present Premises into the Substitution Space
immediately upon the date of such substantial completion by Landlord and shall
vacate and surrender possession to Landlord of the present Premises after such
date, then, thereafter during the period of such occupancy, Tenant shall pay
Rent for the present Premises as set forth in this lease in addition to the Rent
for the Substitution Space at the above-described rates. With respect to such
alteration work in the Substitution Space, if Tenant requests materials or
installations other than those originally installed by Landlord, or if Tenant
shall make changes in the work (such non- original materials or installations or
changes being subject to Landlord's prior written approval), and if such
non-original materials or installations or changes shall delay the work to be
performed by Landlord, or if Tenant shall otherwise delay the substantial
completion of the work, the occurrence of such delays shall in no event postpone
the date for the commencement of the payment of Rent for such Substitution Space
beyond the date on which such work would have been substantially completed but
for such delays, and in addition, Tenant shall continue to pay Rent for the
present Premises as set forth in this Lease until it vacates and surrenders same
as aforesaid. Landlord at its discretion may substitute materials of like
quality for the materials originally utilized.
SECTION 26.5 If Landlord exercises this relocation right after the
Commencement Date, Landlord shall reimburse Tenant for Tenant's reasonable
out-of-pocket expenses for moving Tenant's furniture, equipment, supplies and
telephones and telephone equipment from the present Premises to the Substitution
Space and for reprinting Tenant's stationery of the same quality and quantity of
Tenant's stationery supply on hand immediately prior to Landlord's notice to
Tenant of the exercise of this substitution right. Tenant shall also be
reimbursed by Landlord for the Tenant's unamortized cost of Leasehold
Improvements, if any, installed in the original Premises at Tenant's expense.
SECTION 26.6 Notwithstanding the foregoing provisions of this Article 26,
in the event of redevelopment of the Building, instead of relocating the
Premises to Substitution Space, Landlord may terminate this Lease upon no less
than one hundred eight (180) days written notice to Tenant. On the effective
date of such termination, the obligations of Landlord and Tenant under the
Lease, including Tenant's obligation to pay Rent, shall terminate, except for
those matters which expressly survive the expiration or earlier termination of
the Lease.
22
ARTICLE 27
OTHER DEFINITIONS
When used in this Lease, the terms set forth hereinbelow shall have the
following meanings: (a) "Business Days" shall mean Monday through Friday (except
for Holidays); "Business Hours" shall mean 8:00 a.m. to 6:00 p.m. on Monday
through Friday and 8:00 a.m. to 1:00 p.m. on Saturdays (except for Holidays);
and "Holidays" shall mean those holidays designated by Landlord, which holidays
shall be consistent with those holidays designated by landlords of other office
buildings in the Atlanta, Georgia suburban area. (b) "Common Areas" shall mean
those certain areas and facilities of the Building and the Parking Facilities
and those certain improvements to the Land which are from time to time provided
by Landlord for the use of tenants of the Building and their employees, clients,
customers, licensees and invitees or for use by the public, which facilities and
improvements include any and all corridors, elevator foyers, vending areas,
bathrooms, electrical and telephone rooms, mechanical rooms, janitorial areas
and other similar facilities of the Building and of the Parking Facilities and
any and all grounds, parks, landscaped areas, outside sitting areas, sidewalks,
walkways, tunnels, pedestrianways, driveways, skybridges, and generally all
other improvements located on the Land, or which connect the Land to other
buildings. (c) The words "day" or "days" shall refer to calendar days, except
where "Business Days" are specified. (d) The words "herein", "hereof", "hereby",
"hereunder" and words of similar import shall be construed to refer to this
Lease as a whole and not to any particular Article or Section thereof unless
expressly so stated. (e) The words "include" and "including" shall be construed
as if followed by the phrase "without being limited to." (f) "Net Rentable Area"
shall mean (1) in the case of a single tenancy floor, all floor area measured
from the inside surface of the outer glass of the Building, excluding only the
areas ("Service Areas") within the outside wall used for the Building's stairs,
fire towers, elevator shafts, vertical penetrations of the Building's central
atrium, flues, vents, stacks, pipe shafts, and vertical ducts (which areas shall
be measured from the mid-point of walls enclosing such areas, except for the
Building's central atrium, which shall be measured from the inside surface (with
respect to the Premises) of the glass enclosing such atrium), but including any
Service Areas which are for the specific use of the particular tenant, such as
special stairs or elevators, plus an allocation of the square footage of the
Building's central areas for providing telephone, electrical, mechanical,
janitorial, security and mail services, as well as, the central entry lobby,
ground level elevator lobby and service elevator lobby, central fire exit
corridors, service exit corridor and central loading dock (the "Central Areas"),
and (2) in the case of a floor to be occupied by more than one tenant, all floor
areas within the inside surface (with respect to the Premises) of the glass
enclosing vertical penetrations of the Building's central atrium, and to the
midpoint of the walls separating areas leased by or held for lease to other
tenants or from the Common Areas, but including a proportionate part of the
Common Areas located on such floor based upon the ratio which Tenant's Net
Rentable Area (excluding Common Areas) on such floor bears to the aggregate Net
Rentable Area (excluding Common Areas) on such floor, plus an allocation of the
square footage of the Building's Central Areas. In the case of both single and
multiple tenant floors, telephone, electrical, mechanical, maintenance,
janitorial or security rooms not included in the Building's Central Areas but
which serve more than one floor shall be considered Common Areas and shall be
allocated among all tenants whose premises are served thereby, regardless of
whether such premises are located on the same floor as the rooms in question.
Such allocation shall be made in accordance with the proportion of the Net
Rentable Area so served. No deductions from Net Rentable Area shall be made for
columns or projections necessary to the Building. Net Rentable Area of the
Building shall include office and retail space; it being understood, however,
that the foregoing formula to be used in the calculation of the Net Rentable
Area of office space shall not necessarily be the formula used by Landlord to
calculate the Net Rentable Area of any retail space in the Building. (g)
Reference to Landlord as having "no liability to Tenant" or being "without
liability to Tenant" or words of like import shall mean that Tenant is not
entitled to terminate this Lease, or to claim actual or constructive eviction,
partial or total, or to receive any abatement or diminution of rent, or to be
relieved in any manner of any of Tenant's other obligations hereunder, or to be
compensated for loss or injury suffered or to enforce any other right or kind of
liability whatsoever against Landlord under or with respect to this Lease or
with respect to Tenant's use or occupancy of the Premises. (h) A "repair" shall
be deemed to include such rebuilding, replacement and restoration as may be
necessary to achieve and maintain good working order and condition. (i) The
"termination of this Lease" and words of like import includes the expiration of
the Term or the cancellation of this Lease pursuant to any of the provisions of
this Lease or to law. Upon the termination of this Lease, the Term shall end at
11:59 p.m. on the date of termination as if such date were the Expiration Date,
and neither party shall have any further obligation or liability to the other
after such termination except (i) as shall be expressly provided for in this
Lease and (ii) for such obligations as by their nature or under the
circumstances can only be, or by the provisions of this Lease, may be, performed
after such termination and, in any event, unless expressly otherwise provided in
this Lease, any liability for a payment (which shall be apportioned as of the
date of such termination) which shall have accrued to or with respect to any
period ending at the time of termination shall survive the termination of this
Lease. (j) The "terms of this Lease" shall be deemed to include all terms,
covenants, conditions, provisions, obligations, limitations, restrictions,
reservations and agreements contained in this Lease. (k) "Tenant" shall be
deemed to include Tenant's successors and assigns (to the extent permitted by
Landlord) and any and all occupants of the Premises permitted by Landlord and
claiming by, through or under Tenant. (l) A "year" shall mean a calendar year.
23
IN WITNESS WHEREOF, Landlord and Tenant have set their hands and seals
hereunto and have caused this Lease to be executed by duly authorized officials
thereof, as of the day and year set forth on the cover page hereof.
LANDLORD:
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
a Delaware limited partnership
By: Xxxxxxxx Properties I, Inc., general partner
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: VP
By: /s/ J. Xxxxx Xxxxxxx
-----------------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Senior Vice President
TENANT:
XXXXXXX CENTRAL HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. XxXxxxxxx
-----------------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: SVP Corporate Relations
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: VP Finance
[CORPORATE SEAL]
24
EXHIBIT A
FLOOR PLAN OF THE PREMISES
25
EXHIBIT B
THE LAND
26
EXHIBIT C
LEASEHOLD IMPROVEMENTS
WORK LETTER
ARTICLE 1
TENANT'S OBLIGATIONS
1.01 Landlord shall, at Landlord's cost and expense, construct the
Leasehold Improvements in accordance with certain Plans and Specifications to be
prepared by Space Planner and approved by Landlord and Tenant (the "Working
Drawings and Specifications"). Notwithstanding the foregoing, Landlord and
Tenant acknowledge and agree that under no circumstances shall Landlord be
obligated to spend more than $8.00 per rentable square foot contained in the
Premises to construct the Leasehold Improvements pursuant to the mutually
approved Working Drawings and Specifications.
1.02 Unless otherwise agreed to in writing by Landlord and Tenant, all
work involved in the construction and installation of the Leasehold Improvements
shall be carried out by Contractor under the sole direction of Landlord. Tenant
shall cooperate with Landlord, Contractor and the Space Planner to promote the
efficient and expeditious completion of such work.
1.03 In the Tenant requests any changes in the initially approved
Working Drawings and Specifications, Tenant shall be responsible for the
following:
(a) Payment of the following:
(i) All costs, including professional fees, of Space Planner
which are related to the review and preparation of any changes to the Tenant's
Working Drawings and Specifications (collectively referred to as "Planning
Costs");
(ii) All costs to complete the construction of any requested
changes in the initially approved Leasehold Improvements, including but not
limited to the cost of all labor and materials supplied by Contractor and
Landlord and their respective material suppliers, independent contractors, and
subcontractors to construct and complete the changes in the Leasehold
Improvements, including but not limited to the Contractor's profit and overhead
expenses; and
(iii) Landlord's standard fee of five percent (5%) for Landlord's
additional expenses incurred in the management and supervision of the
construction and installation of any changes in the initially approved Leasehold
Improvements. The fee set forth in this paragraph, together with the Planning
Costs and the costs set forth in Section 1.03(a)(ii) above are collectively
referred to herein as "Tenant's Construction Costs."
(b) Tenant shall pay to Landlord, upon substantial completion of the
Leasehold Improvements, Tenant's Construction Costs, such amount to be indicated
on a statement delivered by Landlord to Tenant.
(c) Tenant agrees that in the event it fails to make any payment
required in this Exhibit C in a timely manner, including, but not limited to,
those payments due under subsection (b) above, Landlord, in addition to any and
all other remedies allowed it by law or in equity, shall have the same rights
and remedies against Tenant as Landlord would have upon the occurrence of an
Event of Default of payment of Rent under this Lease.
ARTICLE 2
[INTENTIONALLY OMITTED]
ARTICLE 3
DEFINITIONS
The following terms shall have the meanings herein specified for all
purposes of this Exhibit C, and, in addition to the terms defined herein, the
definitions in this Lease shall also apply to this Exhibit C.
3.01 "Building Standard" means the quantity and quality of materials,
finishes, and workmanship from time to time specified as such by Landlord for
the Building.
3.02 "Contractor" means the contractor selected pursuant to Section
1.01 above to construct and install the Leasehold Improvements in the Premises.
3.03 "Landlord's Punch List" shall refer to that list determined
jointly by Landlord and Tenant of those matters remaining to be accomplished to
complete construction of the Leasehold Improvements.
28
3.04 "Leasehold Improvements" shall mean the improvements to be
constructed pursuant to the Working Drawings and Specifications.
3.05 "Net Rentable Area" shall have the meaning specified in the
Lease.
3.06 "Net Rentable Area of the Premises" shall be the number of square
feet of the Premises described in this Lease.
3.07 "Non-Building Standard" means all materials, finishes, and
workmanship used in connection with the construction and installation of the
Leasehold Improvements which deviate from Building Standard in terms of quantity
or quality (or both).
3.08 The "Space Planner" shall mean Xxxxxxxx & Associates or such
other space planner selected by Tenant and approved by Landlord.
3.09 "Tenant Delay" shall mean any delay in the occurrence of
substantial completion of the Leasehold Improvements caused in whole or in part
by any one or more of the following:
(a) Tenant's request for change orders whether or not any such change
orders are actually performed; or
(b) Contractor's performance of any change orders; or
(c) Tenant's request for materials, finishes or installations
requiring unusually long lead times; or
(d) Tenant's delay in reviewing, revising or approving plans and
specifications; or
(e) Tenant's delay in providing information critical to the normal
progression of the Leasehold Improvement work. Tenant shall provide such
information as soon as reasonably possible, but in no event longer than three
(3) days after receipt of such written request for information from Landlord; or
(f) Tenant's delay in making payments to Landlord for Tenant's
Construction Costs; or
(g) Changes in the Working Drawings and Specifications made by Tenant
either before or during the construction of the Leasehold Improvements which
result in the Leasehold Improvements being substantially completed later than
they would have been substantially completed absent said changes; or
(h) Any "long-lead time" Non-Building Standard leasehold improvement
item (e.g. millwork) which cannot be fabricated, delivered to the job, and
completely installed within the same time frame as the remainder of the Building
Standard leasehold improvements shown on the Working Drawings and
Specifications; or
(i) Any other act or omission by Tenant, its agents, architects,
engineers, contractors, consultants, or persons employed by any of such persons.
29
EXHIBIT D
FORM OF COMMENCEMENT NOTICE
This Commencement Notice is delivered this ____ day of _______________,
2001, by Xxxxxxxx Properties Acquisition Partners, L.P., a Delaware limited
partnership ("Landlord") to Xxxxxxx Central Holdings, Inc., a Delaware
corporation ("Tenant"), pursuant to the provisions of Section 3.03 of that
certain Lease Agreement (the "Lease"), dated January ____ 2001, by and between
Landlord and Tenant covering certain space in the Building known as 0000
Xxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx. All terms used herein with their initial
letter capitalized shall have the meaning assigned to such terms in the Lease.
W I T N E S S E T H:
1. The Building, the Premises, the Parking Facilities, and all other
improvements required to be constructed and furnished by Landlord in accordance
with the terms of the Lease have been satisfactorily completed by the Landlord
and accepted by the Tenant.
2. The Premises have been delivered to, and accepted by, the Tenant,
subject to the completion of "punch list" items, if any.
3. The Commencement Date of the Lease is the ____ day of ____________,
2001, the Expiration Date is the ___ day of ______________, 2004.
4. The Premises consist of ______________ square feet of Net Rentable Area
on the third (3rd) floor of the Building.
5. Base Rent which includes Base Year Operating Costs for 2001, is
$211,327.00 per annum, payable in monthly installments of $17,610.58, subject,
however, to (i) increases in the Base Rent as provided in the Lease, and (ii)
the provisions of the Lease relating to payment of Operating Costs in excess of
Base Year Operating Costs for 2001.
6. Remittance of the foregoing payments shall be made on the first day of
each month in accordance with the terms and conditions of the Lease at the
following address:
Xxxxxxxx Properties Acquisition Partners, L.P.
X.X. Xxx 000000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
IN WITNESS WHEREOF, this instrument has been duly executed by Landlord as
of the date first written above.
LANDLORD:
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
a Delaware limited partnership
By: Xxxxxxxx Properties I, Inc., general partner
By: ________________________________________
Name: _______________________________
Title:_______________________________
By: ________________________________________
Name: _______________________________
Title:_______________________________
30
RIDER NO. 1
RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways and similar areas
shall not be obstructed by tenants or their officers, agents, servants, and
employees, or used for any purpose other than ingress and egress to and from the
Premises and for going from one part of the Building to another part of the
Building.
2. Plumbing fixtures and appliances shall be used only for the purpose for
which constructed, and no sweepings, rubbish, rags, or other unsuitable material
shall be thrown or placed therein. The cost of repairing any stoppage or damage
resulting to any such fixtures or appliances from misuse on the part of a tenant
or such tenant's officers, agents, servants, and employees shall be paid by such
tenant.
3. No signs, posters, advertisements, or notices shall be painted or
affixed on any of the windows or doors, or other part of the Building, except of
such color, size, and style, and in such places, as shall be first approved in
writing by the building manager. No nails, hooks, or screws shall be driven into
or inserted in any part of the Building, except by Building maintenance
personnel.
4. Directories will be placed by Landlord, at Landlord's own expense, in
conspicuous places in the Building. No other directories shall be permitted.
5. The Premises shall not be used for conducting any barter, trade, or
exchange of goods or sale through promotional give-away gimmicks or any business
involving the sale of second-hand goods, insurance salvage stock, or fire sale
stock, and shall not be used for any auction or pawnshop business, any fire
sale, bankruptcy sale, going-out-of- business sale, moving sale, bulk sale, or
any other business which, because of merchandising methods or otherwise, would
tend to lower the first-class character of the Building.
6. Tenants shall not do anything, or permit anything to be done, in or
about the Building, or bring or keep anything therein, that will in any way
increase the possibility of fire or other casualty or obstruct or interfere with
the rights of, or otherwise injure or annoy, other tenants, or do anything in
conflict with the valid pertinent laws, rules, or regulations of any
governmental authority.
7. Tenant shall not place a load upon any floor of the premises which
exceeds to floor load per square foot which such floor was designed to carry or
which is allowed by applicable building code. Landlord may prescribe the weight
and position of all safes and heavy installations which Tenant desires to place
in the premises so as properly to distribute the weight thereof. All damage done
to the Building by the improper placing of heavy items which overstress the
floor will be repaired at the sole expense of the Tenant.
8. A tenant shall notify the building manager when safes or other heavy
equipment are to be taken into or out of the Building. Moving of such items
shall be done under the supervision of the building manager, after receiving
written permission from him/her.
9. Corridor doors, when not in use, shall be kept closed.
10. All deliveries must be made via the service entrance and service
elevators during normal business hours or as otherwise directed or scheduled by
Landlord. Prior approval must be obtained from Landlord for any deliveries that
must be received after normal business hours.
11. Each tenant shall cooperate with building employees in keeping the
premises neat and clean.
12. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts, or stairways. No birds, animals, or reptiles, or any other creatures,
shall be brought into or kept in or about the building.
13. Should a tenant require telegraphic, telephonic, annunciator, or any
other communication service, Landlord will direct the electricians and
installers where and how the wires are to be introduced and placed, and none
shall be introduced or placed except as Landlord shall direct.
14. Tenants shall not make or permit any improper noises in the Building,
or otherwise interfere in any way with other tenants or persons having business
with them.
15. No equipment of any kind shall be operated on the premises that could
in any way annoy any other tenant in the Building without written consent of
Landlord.
16. Business machines and mechanical equipment belonging to Tenant which
cause noise and/or vibration that my be transmitted to the structure of the
Building or to any leased space so as to be objectionable to Landlord or any
tenants in the Building shall be placed and maintained by Tenant, at Tenant's
expense, in setting of cork, rubber, or spring type noise and/or vibration
eliminators sufficient to eliminate vibration and/or noise.
17. Tenants shall not use or keep in the Building any inflammable or
explosive fluid or substance, or any illuminating material, unless it is battery
powered, UL approved.
1
18. Tenants employees or agents, or anyone else who desires to enter the
Building after normal business hours, may be required to provide appropriate
identification and sign in upon entry, and sign out upon leaving, giving the
location during such person's stay and such person's time of arrival and
departure, and shall otherwise comply with any reasonable access control
procedures as Landlord may from time to time institute.
19. Landlord has the right to evacuate the Building in event of emergency
or catastrophe.
20. If any governmental license or permit shall be required for the proper
and lawful conduct of Tenant's business, Tenant, before occupying the Premises,
shall procure and maintain such license or permit and submit it for Landlord's
inspection. Tenant shall at all times comply with the terms of any such license
or permit.
21. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and street address of the Building.
22. Upon Tenant's occupancy, Landlord shall provide Tenant with one (1)
security card and one (1) entry key for each 300 square feet of Net Rentable
Area of the Premises. Tenant may purchase additional entry keys and security
cards from Landlord. Upon the expiration or earlier termination of this Lease,
Tenant shall return the security card and all entry keys which were provided to
Tenant upon occupancy of the Premises.
23. Landlord reserves the right to rescind any of these Rules and
Regulations and make such other and further rules and regulations not
inconsistent with the express terms of the lease as in the judgment of Landlord
shall from time to time be needed for the safety, protection, care, and
cleanliness of the Building, the operation thereof, the preservation of good
order therein, and the protection and comfort of its tenants, their agents,
employees, and invitees, which Rules and Regulations when made and notice
thereof given to a tenant shall be binding upon him in like manner as if
originally herein prescribed. In the event of any conflict, inconsistency, or
other difference between the terms and provisions of these Rules and
Regulations, as now or hereafter in effect and the terms and provisions of any
lease now or hereafter in effect between Landlord and any tenant in the
Building, Landlord shall have the right to rely on the term or provision in
either such lease or such Rules and Regulations which is most restrictive on
such tenant and most favorable to Landlord.
24. No smoking shall be permitted inside the Building or the Premises, and
shall be permitted only in areas designated by Landlord outside the Building.
2
RIDER NO. 2
SPECIAL STIPULATIONS
In the event of any conflict between the terms and provisions of these
Special Stipulations and the remaining provisions of this Lease, the terms and
provisions of these Special Stipulations shall control:
1. ELECTRICAL SERVICE TO THE PREMISES. Landlord shall install, as a part of
the Leasehold Improvements to the Premises, three (3) 220-volt outlets in a
location approved by Landlord and Tenant for use by Tenant in connecting and
operating Tenant's photocopying equipment in the Premises.
2. SERVICES OF LANDLORD. In addition to the services set forth in Article 7
of the Lease, Landlord agrees to clean the exterior of the windows of the
Premises not less often than annually during the Term of this Lease.
3. CONTINGENCY. Anything contained in the Lease to the contrary
notwithstanding, the effectiveness of the Lease is contingent upon Landlord
entering into a Lease Cancellation Agreement with the tenant currently in
possession of the Premises (the "Current Tenant") upon terms and conditions
acceptable to Landlord in Landlord's sole discretion. If Landlord and the
Current Tenant fail to enter into such Lease Cancellation Agreement by or before
March 1, 2001, or in the event Landlord is unable to deliver possession of the
Premises unencumbered by any lease or occupant on or before such date, the Lease
shall be void and of no further force or effect and neither Landlord nor Tenant
shall be liable in any manner to the other for the ineffectiveness of the Lease
or for the failure of Landlord and Current Tenant to enter into any such Lease
Cancellation Agreement.
3
1349837
