EXHIBIT 10.20
SUB-SUBLEASE AGREEMENT
THIS AGREEMENT is made this day of 19th day of August, 1998, by and between
The Profit Recovery Group International 1, Inc., a Georgia corporation with its
principal place of business at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000 Xxxxx,
Xxxxxxx, Xxxxxxx 00000-0000 (hereinafter called "PRG") and Manhattan Associates,
Inc., a Georgia corporation with its principal place of business at 0000 Xxxxx
Xxxxx Xxxxxxx, Xxxxx 000 Xxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter called
"Manhattan").
WITNESSETH:
WHEREAS, pursuant to a Lease, dated July 31, 1987, as subsequently amended
on November 10, 1987, April 30, 1988, August 4, 1989, October 10, 1989, November
7, 1989, December 1, 1989 and March 12, 1990 (herein collectively called the
"Prime Lease" and attached as Exhibit "A"), International Business Machine
Corporation, a New York corporation (hereinafter called the "Prime Sublessor")
leased from Wildwood Associates, a Georgia general partnership (hereinafter
called the "Prime Lessor") certain portions of the building known as 0000 Xxxxx
Xxxxx Xxxxxxx, Xxxxxxxx Xxxxxx Xxxx, Xxxxxxx Xxxxxxx (the "Building"), including
but not limited to the third (3rd) floor thereof; and
WHEREAS, pursuant to a Sublease, dated October 29, 1993, (herein called the
"Prime Sublease" and attached as Exhibit "B"), PRG's predecessor in interest
sublet from the Prime Sublessor the third (3rd) floor of the Building; and
WHEREAS, PRG desires to Sub-Sublease to Manhattan and Manhattan desires to
SubSublease from PRG the third (3rd) floor consisting of approximately 23,776
rentable square feet (the "Premises").
NOW THEREFORE, for and in consideration of the foregoing and for other good
and valuable consideration and of the mutual agreements hereinafter set forth,
PRG and Manhattan stipulate, covenant and agree as follows:
1. PREMISES
PRG does hereby Sub-Sublease to Manhattan a portion of the Building
consisting of approximately 23,776 square feet of rentable area on the third
(3rd) floor of the North Tower thereof (the "Premises") as outlined in red and
crosshatched on Exhibit "C" attached hereto and made a part hereof.
2. DELIVERY OF PREMISES
On or before September 15, 1998, PRG shall make available to Manhattan that
portion of the Premises consisting of approximately 7,998 square feet of
rentable area as identified on Exhibit "C". On or before March 1, 1999, PRG
shall make available to Manhattan the remaining portion of the Premises.
3. TERM
The term shall commence on the date of delivery specified in Section 4
hereof, and except as provided herein, shall expire on December 30, 2002.
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4. USES
The Premises shall be used for office space in accordance with all
applicable laws, ordinances, rules and regulations of governmental authorities
and the Rules and Regulations attached to the Prime Lease, as same may have been
modified or amended by virtue of the Prime Sublease. Manhattan covenants and
agrees to abide by the Rules and Regulations in all respects as now set forth
and as hereafter promulgated by Prime Lessor. Prime Lessor shall have the right
at all times during the Lease Term to publish and promulgate and thereafter
enforce such rules and regulations or changes in the existing Rules and
Regulations as it may reasonably deem.
5. RENT
Commencing on the date the Premises, or the applicable portion thereof,
shall be delivered to Manhattan, Manhattan shall pay to PRG Annual Base Rent
equal to (a) $20.76 per rentable square foot for portions of the Premises which
it occupies, plus (b) $20.76 per rentable square foot for its pro-rata portion
of the "common area" described in Paragraph 7, and computed by multiplying the
Annual Base Rent by a fraction, the numerator of which shall be the number of
rentable square feet of the Premises occupied by Manhattan, and the denominator
of which shall be the number of square feet of the Premises occupied by
Manhattan plus the number of square feet of the Premises occupied by PRG
(exclusive of any portion of the Premises designated as "common area").
In addition to Annual Base Rent, Manhattan shall pay Additional Rental as
described in Paragraph 6, (collectively the "Rent") provided for hereunder in
advance on the first day of every month during the Term. Rent shall be a
prorated rate for fractions of a month if this Sub-Sublease commences or expires
(as the case may be) for any reason on any day other than the first or last day
of the calendar month, respectively. Manhattan shall make payment of Rent to
PRG, at the address specified the preamble of this Agreement and directed to the
attention of the Controller.
6. ADDITIONAL RENTAL
(a) In addition to Annual Rent, Manhattan shall pay as Additional Rental its
pro-rata share of increases in operating expenses over and above $6.50 per
rentable square foot of the Premises, as defined in Article 3.04 of the Prime
Lease. PRG shall furnish Manhattan with a true copy of the statement of
operating expenses delivered by Prime Lessor to PRG pursuant to the Prime Lease
and the Prime Sublease. Manhattan shall reimburse PRG within twenty (20) days
after the operating expense statement is furnished to Manhattan.
For purposes of this Sub-Sublease, Manhattan shall pay Additional Rent on
the Premises and its pro-rata portion of the "common area" described in
Paragraph 7 hereof. Manhattan's share of said "common area" shall be equal to a
fraction having as its numerator the number of rentable square feet of the
Premises actually occupied by Manhattan, and as its denominator, the number of
square feet of the Premises occupied by Manhattan plus the number of square feet
of the Premises occupied by PRG; both the numerator and denominator shall
exclude any portion of the Premises designated as "common area."
(b) In addition to the foregoing, if Manhattan shall procure any services
from the Building beyond the Building standard services specified in the Prime
Lease, (such as alterations or after-hour air-conditioning) Manhattan shall pay
for same at the rates charged therefor by the Prime Lessor and shall make such
payment to PRG or Prime Lessor, as PRG shall direct.
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(c) Any Additional Rent or other sums payable by Manhattan under this
Paragraph 6 shall be considered rent and collectible by PRG as such. If PRG
shall receive any refund from either the Prime Sublessor or the Prime Lessor,
Manhattan shall be entitled to the return of so much thereof as shall be
attributable to prior payments by Manhattan.
7. PREPARATION FOR OCCUPANCY
Prior to delivery of the first portion of the Premises, as described in
Paragraph 2, PRG shall arrange for the construction of certain demising walls,
corridors and doorways, as are indicated on Exhibit "C" to create a "common
area" within the Premises, consisting of approximately 1,491 rentable square
feet and identified on Exhibit "C". The cost of such construction shall be
evenly divided by PRG and Manhattan, and Manhattan shall reimburse PRG for its
share of such construction costs within thirty (30) days of an invoice therefor.
Manhattan shall at its sole expense, perform or cause to be performed, such
construction of the Premises as it desires; provided, however, that prior to the
commencement of construction, Manhattan shall obtain the written consent of PRG,
the Prime Sublessor and the Prime Lessor, as same may be required under the
Prime Lease or the Prime Sublease, which consent shall not be unreasonably
withheld or delayed by PRG, to Manhattan's construction plans.
8. INCORPORATION OF PRIME LEASE
(a) This Sublease is subject to all of the terms of the Prime Lease and
the Prime Sublease with the same force and effect as if fully set forth herein
at length, excepting only those provisions specified herein. All of the terms
with which PRG is bound to comply under the Prime Lease or the Prime Sublease
shall, to the extent they apply to the Premises and except as otherwise provided
herein, be binding upon Manhattan, and all of the obligations of Prime Lessor
set forth in the Prime Lease shall and all of the obligations of IBM set forth
in the Prime Sublease, to the extent only that they apply to the Premises and
except as otherwise provided herein, inure to the benefit of Manhattan. It is
the intention of the parties that, except as otherwise provided in this Sub-
Sublease, the relationship between PRG and Manhattan shall be governed by the
language of the various articles of the Prime Lease and the Prime Sublease as if
they were typed out in this Sub-Sublease in full, and the words "Lessor"
"Lessee" and "Prime Lease" as used in the Prime Lease, and the words "Sublessor"
"Sublessee" and "Sublease", shall read, respectively "PRG" "Manhattan" and "Sub-
Sublease".
(b) For the purpose of this Sub-Sublease, the following provisions of the
Prime Sublease are hereby deleted in their entirety:
Sections 4, 12, and 15 of the Sublease dated October 29, 1993;
Sections 1, 2, 3, 4, 5, 11 and 12 of Exhibit "B" to the Sublease dated
October 29, 1993; and all provisions of the First Sublease Amendment
dated as of February 12, 1996.
9. PARKING
PRG shall provide Manhattan with a total of seven (7) of PRG's reserved
parking spaces, in the area designated for reserved parking by the Prime Lessor,
and as subject to change by the Prime Lessor. Subject to the rights of the Prime
Lessor or Prime Sublessor, PRG shall have the sole authority to designate which
of its reserved parking spaces shall be provided to Manhattan hereunder. Two (2)
reserved parking spaces shall be provided to Manhattan upon commencement of its
occupancy of the
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first portion of the Premises, and the remaining five (5) spaces shall be made
available to Manhattan on or before March 1, 1999.
10. QUIET ENJOYMENT
(a) PRG covenants and agrees with Manhattan that upon Manhattan paying the
Rent and Additional Rent reserved in this Sub-Sublease and observing and
performing all of the other obligations, terms, covenants and conditions of this
Sub-Sublease on Manhattan's part to be observed and performed, Manhattan may
peaceably and quietly enjoy the Premises and Common Building Facilities (in
common with other tenants) during the Term; provided, however, that this Sub-
Sublease shall automatically terminate upon termination of either the Prime
Lease or the Prime Sublease, and Manhattan shall have no claim against PRG
unless such termination was caused by the default of PRG in the performance of
those material obligations (under either the Prime Lease or the Prime Sublease)
which have not been assumed by Manhattan hereunder. PRG will indemnify and hold
harmless Manhattan from and defend Manhattan against all claims, liabilities
losses and damages that Manhattan may incur by reason of, resulting from or
arising out of any such termination of the Prime Lease or the Prime Sublease due
to PRG's default thereunder. PRG covenants and agrees that (i) PRG will not
enter into a consensual agreement with the Prime Lessor under the Prime Lease or
with the Prime Sublessor under the Prime Sublease to terminate either the Prime
Lease or the Prime Sublease, as the case may be, (ii) PRG will not terminate
this Sub-Sublease as it pertains to the Premises unless PRG is entitled to do so
under the Sublease or under this Sub-Sublease or by the condemnation and
casualty provisions of this Sublease.
(b) Manhattan covenants and agrees that Manhattan shall not do or suffer or
permit anything to be done (within its reasonable and direct control) which
would constitute a default under the Prime Lease or the Prime Sublease, or would
cause the Prime Lease or the Prime Sublease to be canceled, terminated or
forfeited by virtue of any rights of cancellation, termination, or forfeiture
reserved or vested in Prime Lessor under the Prime Lease or the Prime Sublessor
under the Prime Sublease, Manhattan will indemnify and hold harmless PRG from
and defend PRG against all claims, liabilities, losses and damages of any kind
whatsoever that PRG may incur by reason of, resulting from or arising out of the
cancellation, termination or forfeiture of the Prime Lease or the Prime
Sublease, which is caused by any act or omission of Manhattan.
11. NOTICES
Any notice, demand, or request under this Sublease shall be in writing and
shall be considered properly delivered when addressed as hereinafter provided
and delivered by hand or by nationally recognized overnight courier service to
the addressee set forth in the preamble of this Agreement with all notices to
PRG being directed to the attention of Xxxxxxx XxXxxxxx, Xx., Esq. and all
notices to Manhattan being directed to the attention its President. Rejection or
other refusal to accept or the inability to deliver because of a changed address
of which no notice was given shall be deemed to be receipt of the notice, demand
or request sent. Address for notice may be changed by either party by giving 30
days written notice to the current address of record.
PRG agrees to provide, in a timely manner, copies of any notices it
receives from the Prime Lessor or the Prime Sublessor with respect to the
Premises.
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12. ASSIGNMENT AND SUBLETTING
Except as permitted by Paragraph 9 of the Prime Sublease, Manhattan shall
not assign, mortgage, transfer, pledge or encumber its interest in this Sub-
Sublease, in whole or in part, or sublet or permit the subletting of the
Premises, or permit the Premises or any part thereof to be occupied or used by
any person or entity other than Manhattan, without in each case having first
obtained the written consent of (a) PRG, which consent shall not be unreasonably
withheld, delayed or conditioned, and (b) the Prime Sublessor. Failure of any
party to obtain the consent of the Prime Lessor shall in each case constitute a
reasonable and conclusive basis for withholding consent.
13. PRIME LESSOR'S RESPONSIBILITIES
Notwithstanding anything to the contrary contained in this Sub-Sublease,
Manhattan agrees and acknowledges that it will look solely to the Prime Lessor,
and to neither PRG nor Prime Sublessor, to furnish all services and to perform
all obligations of Prime Lessor pursuant to the Prime Lease. PRG shall not be
liable to Manhattan or be deemed in default hereunder for failure of Prime
Lessor to furnish such services or perform such obligations. If Prime Lessor
shall fail to perform any of its obligations under the Prime Lease, Manhattan
may, at its option, enforce performance thereof if and to the extent authorized
by the Prime Lease, and PRG shall cooperate with Manhattan in such enforcement.
14. DESTRUCTION AND EMINENT DOMAIN
Article 10.01, titled "Damage or Destruction," and Article 12, titled
"Condemnation," of the Prime Lease are modified to provide that if by operation
of either of these two Articles the Prime Lease is not terminated and continues
in full force and effect, this Sub-Sublease shall not be terminated but shall
also continue in full force and effect, except that until the Premises are
restored in accordance with these two Articles there shall be a proportionate
abatement of Annual Rental and payable hereunder to the extent of damage to the
Premises; provided, however, that such abatement shall in no event exceed the
abatement granted to PRG under the Prime Sublease for the Premises and, provided
further, that no compensation or claim or reduction will be allowed or paid by
PRG by reason of inconvenience, annoyance or injury to Manhattan's business
arising from the necessity of affecting repairs to the Premises or any portion
of the Building, whether such repairs are required by operation of these two
Articles or any other provision of the Prime Lease. Notwithstanding the
foregoing, if the Premises cannot be restored within ninety (90) days after
damage, destruction or condemnation (in the reasonable opinion of the Prime
Lessor's architect), then Manhattan may elect to terminate this Sublease by
written notice (to PRG) given within thirty (30) days after PRG's receipt of
Sublessor's estimate of the time required to restore the Premises.
15. INSURANCE
(a) Manhattan shall maintain comprehensive general liability insurance
covering the legal liability of Manhattan and PRG against all claims for any
bodily injury or death of persons and for damage to or destruction to property
occurring on, in or about the Premises and arising out of the use or occupation
of the Premises by Manhattan in the minimum amount of $5,000,000.00 in
connection with any single occurrence of bodily injury or death and $500,000.00
in connection with claims for property damage. Such policy shall provide that it
may not be canceled or materially changed without at least thirty-(30) days
prior written notice to each name insured. PRG shall be named as an additional
insured on the insurance policies required of Manhattan under this Sub-Sublease.
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(b) PRG and Manhattan shall each have included in all policies of
commercial property insurance and other insurance (required under the Prime
Lease, the Prime Sublease or this SubSublease) obtained by them covering the
Premises, the Building and the contents therein, a waiver by the insurer of all
right or subrogation against the other in connection with any loss or damage
thereby insured against. Any additional premium for such waiver shall be paid by
the primary insured. To the full extent permitted by law, PRG and Manhattan each
waives all right to recovery against the other for, and agrees to release the
other from liability for, loss or damage to the extent such loss or damage is
covered by valid and collectible insurance in effect at the time of such loss or
damage or would be covered by the insurance required to be maintained under this
Sublease by the party seeking recovery.
16. BROKERAGE
Each party represents and warrants to the other that no broker, agent, or
other person has represented such party in the negotiations for and procurement
of this Sub-Sublease and that except as may be set forth herein, no commissions,
fees or compensation of any kind are due and payable in connection herewith to
any broker, agent, or other person as a result of any act or agreement of such
party. Each party through which such a claim arises agrees to indemnify and hold
the other harmless from all loss, liability, damage, claim, cost or expense
(including reasonable attorneys' fees and court costs) suffered or incurred as a
result of a breach of the representations and warranties contained in the
immediately preceding sentence.
17. BINDING AND ENTIRE AGREEMENT
This Sub-Sublease shall be binding on PRG and Manhattan, and each of its
respective legal representatives, successors and permitted assigns. This Sub-
Sublease contains the entire agreement of the parties with respect to the
subject matter herein and may not be modified except by instrument in writing,
which is signed by both parties.
[Signatures on Next Page]
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18. CONSENT OF PRIME SUBLESSOR
In accordance with Section 9 of the Prime Sublease, it is understood and
agreed that this Sub-Sublease shall not become effective unless and until PRG
has obtained and delivered to Manhattan the written consent of Prime Sublessor
to the subletting herein on or before the Commencement Date.
IN WITNESS WHEREOF, duly authorized representatives of the parties hereto
have executed this Sub-Sublease as of the day and year first above written.
WITNESS: MANHATTAN ASSOCIATES, INC.
__________________________ By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Title: Chief Financial Officer
[CORPORATE SEAL]
WITNESS: THE PROFIT RECOVERY GROUP
INTERNATIONAL 1, INC.
__________________________ By: /s/ Dall X. Xxxx, Xx.
---------------------------------
Title: Senior VP & CFO
[CORPORATE SEAL]
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EXHIBIT "A"
________________________________________________________________________________
________________________________________________________________________________
LEASE
WILDWOOD ASSOCIATES
LANDLORD
AND
INTERNATIONAL BUSINESS MACHINES CORPORATION
TENANT
Dated: As of July 31, 1987
________________________________________________________________________________
________________________________________________________________________________
TABLE OF CONTENTS
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Page
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ARTICLE ONE - LEASE OF PREMISES.......................................... 3
ARTICLE TWO - TERM....................................................... 4
Section 2.01 Initial Term of this Lease........................ 5
Section 2.02 Extended Terms.................................... 5
Section 2.03 Term of this Lease................................ 6
ARTICLE THREE - RENT AND ADDITIONAL RENT................................. 6
Section 3.01 Annual Rent....................................... 6
Section 3.02 Extended Rent..................................... 7
Section 3.03 Additional Rental................................. 7
Section 3.04 Operating Expenses................................ 7
Section 3.05 Real Estate Taxes................................. 13
Section 3.06 Taxes Payable by Tenant........................... 14
Section 3.07 Tax Contest....................................... 15
Section 3.08 Tenant's Share.................................... 15
ARTICLE FOUR - PREPARATION FOR OCCUPANCY TERM
COMMENCEMENT DATE......................................... 16
Section 4.01 Construction...................................... 16
Section 4.02 Rental Commencement Date.......................... 16
Section 4.03 Punch List Items.................................. 18
Section 4.04 Excusable Delays.................................. 18
Section 4.05 Tenant's Rights................................... 19
Section 4.06 Tenant Allowance.................................. 19
ARTICLE FIVE - LANDLORD'S TITLE AND ALLOWABLE USE........................ 19
Section 5.01 Landlord's Covenant Regarding
Title and Use..................................... 19
Section 5.02 Landlord's Covenant Regarding
Lawsuits.......................................... 20
ARTICLE SIX - SERVICES................................................... 20
Section 6.01 Services Provided by Landlord..................... 20
Section 6.02 Security to Leased Premises....................... 23
Section 6.03 Landlord's Default -
Tenant's Remedies................................. 23
2
ARTICLE SEVEN - TENANT'S PARKING......................................... 23
Section 7.01 Tenant's Parking.................................. 23
ARTICLE EIGHT - USE...................................................... 24
ARTICLE NINE - REPAIRS AND MAINTENANCE................................... 25
Section 9.01 Landlord's Repairs................................ 25
Section 9.02 Tenant's Repairs.................................. 25
Section 9.03 Landlord's Failure to Make Repairs................ 25
Section 9.04 Emergency Repairs................................. 26
Section 9.05 Tenant's Remedies................................. 26
ARTICLE TEN - FIRE AND OTHER CASUALTY - CASUALTY
INSURANCE.................................................. 26
Section 10.01 Damage or Destruction................................. 26
Section 10.02. Casualty and Liability Insurance..................... 28
ARTICLE ELEVEN - LIABILITY............................................... 30
Section 11.01 Indemnification by Tenant......................... 30
Section 11.02 Indemnification by Landlord....................... 30
ARTICLE TWELVE - CONDEMNATION............................................ 31
Section 12.01 Taking - Termination of Lease..................... 31
Section 12.02 Taking - Lease Continues.......................... 31
Section 12.03 Temporary Taking.................................. 31
Section 12.04 Landlord's Award.................................. 32
Section 12.05 Tenant's Award.................................... 32
Section 12.06 Restoration by Landlord........................... 32
Section 12.07 Definitions....................................... 32
ARTICLE THIRTEEN - ALTERATIONS AND IMPROVEMENTS.......................... 33
Section 13.01 Alterations and Improvements...................... 33
Section 13.02 Ownership of Tenant's Alterations and
Improvements...................................... 33
Section 13.03 Removal........................................... 33
Section 13.04 Landlord's Approval............................... 33
Section 13.05 Definitions....................................... 34
Section 13.06 Landlord's Alterations and Improvements........... 34
ARTICLE FOURTEEN - LANDLORD'S ACCESS..................................... 34
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ARTICLE FIFTEEN - COMPLIANCE WITH LAWS................................... 35
Section 15.01 Tenant's Compliance with Laws..................... 35
Section 15.02 Landlord's Compliance with Laws................... 35
ARTICLE SIXTEEN - SURRENDER OF POSSESSION OF THE
LEASED PREMISES................................... 36
ARTICLE SEVENTEEN - SIGNS 36
Section 17.01 Tenant's Signs.................................... 36
Section 17.02 Directory......................................... 36
Section 17.03 Building Sign..................................... 36
Section 17.014 Compliance with Code.............................. 37
ARTICLE EIGHTEEN - SUBORDINATION AND NON-DISTURBANCE..................... 37
ARTICLE NINETEEN - MECHANICS' LIENS...................................... 38
ARTICLE TWENTY - INTENTIONALLY OMITTED................................... 38
ARTICLE TWENTY-ONE - OPTION FOR ADDITIONAL SPACE......................... 38
ARTICLE TWENTY-TWO - TENANT'S SECURITY IN THE
LEASED PREMISES..................................... 42
Section 22.01 Limited Restrictions Against
Other Tenants..................................... 42
Section 22.02 Inclusion of Restrictions in Other
Leases and Subleases.............................. 43
Section 22.03 Advance Consultation with Tenant.................. 43
Section 22.04 Inapplicability................................... 43
ARTICLE TWENTY-THREE - FIRST REFUSAL SALE................................ 43
Section 23.01 Sale of the Building.............................. 43
Section 23.02 Changes in Landlord's Entity...................... 45
Section 23.03 Mortgagee Exemption............................... 45
Section 23.04 Other Exemptions.................................. 45
ARTICLE TWENTY-FOUR - DEFAULT............................................ 46
Section 24.01 Default by Tenant................................. 46
Section 24.02 Suspension of Tenant Default...................... 47
Section 24.03 Default by Landlord............................... 48
ARTICLE TWENTY-FIVE - HOLDOVER........................................... 48
ARTICLE TWENTY-SIX - NOTICES TO LANDLORD AND TENANT...................... 49
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ARTICLE TWENTY-SEVEN - ASSIGNMENT AND SUBLETTING.......................... 49
Section 27.01 Assignment or Sublease to Subsidiary or Affiliate.. 49
Section 27.02 Assignment or Sublease to a Third Party............ 49
ARTICLE TWENTY-EIGHT - EQUAL EMPLOYMENT OPPORTUNITY....................... 51
ARTICLE TWENTY-NINE - QUIET ENJOYMENT..................................... 51
ARTICLE THIRTY - NON-WAIVER............................................... 51
ARTICLE THIRTY-ONE - PARTIAL INVALIDITY................................... 52
ARTICLE THIRTY-TWO - RULES AND REGULATIONS................................ 52
Section 32.01 Tenant's Obligation............................... 52
Section 32.02 Standards Applicable to Landlord.................. 52
Section 32.03 Landlord's Enforcement............................ 52
Section 32.04 Conflict.......................................... 53
ARTICLE THIRTY-THREE - ESTOPPEL CERTIFICATES............................. 53
Section 33.01 Tenant's Estoppel Certificate..................... 53
Section 33.02 Landlord's Estoppel Certificate................... 53
ARTICLE THIRTY-FOUR - EXAMINATION OF LEASE............................... 53
ARTICLE THIRTY-FIVE - COUNTERPARTS....................................... 54
ARTICLE THIRTY-SIX - ANTENNA............................................. 54
ARTICLE THIRTY-SEVEN - BROKER............................................ 55
ARTICLE THIRTY-EIGHT - ARBITRATION....................................... 55
ARTICLE THIRTY-NINE - MISCELLANEOUS...................................... 57
Section 39.01 Lease is Not Strictly Construed................... 57
Section 39.02 No Exclusive Remedies............................. 57
Section 39.03 Intentionally Omitted............................. 57
Section 39.04 Tenant's Rights to Deal with Its
Own Contractors and Suppliers..................... 57
Section 39.05 Governing Law..................................... 57
Section 39.06 Non-disclosure of Lease........................... 57
Section 39.07 Exculpation....................................... 57
Section 39.08 Time of Essence................................... 58
Section 39.09 Late Charges...................................... 58
Section 39.10 Attorney's Fees................................... 58
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ARTICLE FORTY - MEMORANDUM OF LEASE...................................... 58
ARTICLE FORTY-ONE - BINDING AGREEMENT.................................... 59
ARTICLE FORTY-TWO - ENTIRE AGREEMENT..................................... 59
EXHIBIT A - Floor Plans of the Leased Premises
EXHIBIT B - Description of Land
EXHIBIT C - Supplemental Agreements
EXHIBIT D - Base Building Work And/or Layout Work
EXHIBIT E - Schedule of Rentable Areas
EXHIBIT F - Heat, Ventilation and Air Conditioning
Specifications
EXHIBIT G - Janitor and Cleaning Specifications
EXHIBIT H - Rules and Regulations
EXHIBIT I - Description of Base Building Plans
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BASIC LEASE INFORMATION
The following Basic Lease Information is attached to the Lease for
reference and convenience purposes only. The Basic Lease Information is
Qualified in all respects by reference to the applicable portions of the Lease,
and in the event of any conflict between the Basic Lease Information and the
provisions of the Lease, the Lease shall control.
Date of Lease July 31, 1987
Landlord: Wildwood Associates, a Georgia general
partnership comprised of International
Business Machines Corporation, a New York
corporation and Cousins Properties
Incorporated, a Georgia corporation
Tenant: International Business Machines
Corporation (IBM)
Building Address: 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxxx,
Xxxxxxx 00000
Leased Premises: Subject to Section 1.01(b), approximately
221,000 square feet of contiguous
rentable area (calculated using usable
area plus a 15% common area factor)
located on and comprising all of the
third, fourth and fifth floors of the
north tower of the Building, the entire
sixth and seventh floors of the Building
(north and south towers) and the balance
(approximately 17,463 square feet of
rentable area) on the second floor of the
north tower of the Building.
Term: From the date of this Lease through
December 31, 2002.
Options to Extend: Two (2) successive five (5) year options.
Rental Commencement Date: The date determined in accordance with
Section 4.02, but in no event earlier
than January 1, 1988 and as otherwise
provided in Section 3.01 as to the
payment of Annual Rent.
Tenant's Share: The percentage determined by dividing the
rentable square feet in the Leased
Premises by 614,543. See Supplemental
Agreement.
Annual Rental: From May 1, 1988 through December 31,
1988, _________ per square foot of
rentable area per year.
From January 1, 1989 through December 31,
1989, _________ per square foot of
rentable area per year.
From January 1, 1990 through December 31,
1990, _________ per square foot of
rentable area per year.
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From January 1, 1991 through December 31,
1991, _________ per square foot of rentable
area per year.
From January 1, 1992 through December 31,
1992, _________ per square foot of rentable
area per year.
From January 1, 1993 through December 31,
1997, _________ per square foot of rentable
area per year.
From January 1, 1998 through December 31,
2002, _________ per square foot of rentable
area per year.
During the first Extended Term, __________
per square foot of rentable area per year.
During the second Extended Term, _________
per square foot of rentable area per year.
Operating Expenses: Tenant is responsible for Tenant's Share of
Operating Expenses as provided in Section
3.03 (initially estimated __________ per
square foot of rentable area per year).
Expansion Options: In accordance with the provisions of
Article 21 of the Lease, up to __________
square feet of contiguous rentable area on,
at Landlord's option, either the fifth
floor of the south tower of the Building or
the eighth floor of the Building during
1993 and up to 25,000 square feet of
contiguous rentable area on, at Landlord's
option, either the fifth floor of the south
tower of the Building, or the eighth floor
of the Building during 1998.
Service of Notice: By personal delivery, registered, certified
or express mail as set forth in Article 26
of the Lease
-8-
LEASE
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PARTIES
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THIS LEASE, made as of the 31st day of July, 1987, between WILDWOOD
ASSOCIATES, a Georgia general partnership comprised of International Business
Machines Corporation, a New York corporation, and Cousins Properties
Incorporated, a Georgia corporation, having an office at Suite 1600, 0000 Xxxxx
Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000, hereinafter called "Landlord" and
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation, having its
principal office at Xxxxxx, Xxx Xxxx 00000, hereinafter called "Tenant".
ARTICLE ONE
LEASE OF THE PREMISES
Section 1.01. Lease of the Premises. (a) Landlord hereby leases to Tenant,
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and Tenant hereby leases from Landlord, upon and subject to the covenants,
agreements, terms, provisions and conditions of this Lease, the Leased Premises,
as more particularly shown and described below in the building, as well as the
parking area and related improvements (the "Building") at the address known as
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000 situated on a plot of land
(the "Land") located in Xxxx County, Georgia and being more particularly
described on Exhibit B attached hereto. The Building located on the Land is
comprised of two segments which are referred to herein and on floor plans
attached hereto as Exhibit A as the "north tower" of the Building and the "south
tower" of the Building.
(b) The Leased Premises shall mean that certain floor area of the Building
containing approximately 221,000 square feet of contiguous rentable area located
on and comprising all of the third (3rd), fourth (4th) and fifth (5th) floors of
the north tower of the Building, the entire sixth (6th) and seventh (7th) floors
of the Building (north and south towers) and approximately 17,463 square feet of
contiguous rentable floor area located on the second (2nd) floor of the north
tower of the Building) (i) together with such additional space as Tenant may
lease in the Building pursuant to any provisions of the Lease (when added to the
Leased Premises) (ii) less such space as may be deleted from the Leased Premises
pursuant to any provision of this Lease (when so deleted). The floor plans for
the second (2nd), third (3rd), fourth (4th) and fifth (5th) floors of the north
tower of the Building and the entire sixth (6th) and seventh (7th) floors of the
Building (north and south towers) are attached hereto as Exhibit A. The actual
rentable area of the Building is approximately 614,543 square feet which square
footage has been determined as set forth in Section 4.02.
(c) This Lease includes the right of Tenant to use the Common Building
Facilities in common with other tenants in the Building and Tenant's parking
spaces (as provided for in Article 7) in the Building Parking Area. In addition,
upon the completion of the extension of Xxxxx Xxxx Road from its current
terminus, and prior to the dedication of such extension, this Lease includes the
non-exclusive right of Tenant to use such extension of Xxxxx Xxxx Road.
(d) The term "Common Building Facilities" shall mean all of the common
facilities in or around the Building designed and intended for use by the
tenants in the Building in common with Landlord and each other, including but
not limited to hallways, elevators, fire stairs, telephone and electric closets,
and risers, aisles, walkways, truck docks, plazas, courts, restrooms (excluding
restrooms on floors entirely leased by or held for lease to other tenants),
service areas, lobbies, landscaped areas, and all other common and service areas
of the Land and the Building intended for such use on the date
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hereof. Notwithstanding the foregoing, the restrooms on floors entirely leased
by Tenant shall be for the exclusive use of Tenant and shall not be used in
common with other tenants or occupants of the Building.
ARTICLE TWO
TERM
Section 2.01. Initial Term of. This Lease. The initial term of this Lease
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(the "Initial Term") shall commence on the date hereof and shall expire on
December 31, 2002, subject to extension and earlier termination as hereinafter
provided.
Section 2.02. Extended Terms. Tenant shall have the option to extend the
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term of this Lease for the Leased Premises for two (2), consecutive five (5)
year extended terms (each an "Extended Term"). Such option shall be exercised by
written notice to Landlord given at least twelve (12) months prior to the
expiration of the Initial Term or the applicable Extended Term. Each Extended
Term shall be upon the same covenants, agreements, terms, provisions and
conditions as are contained herein for the Initial Term, except as expressly
provided here to the contrary and except for such terms as are inapplicable to
an Extended Term. The Annual Rent payable during each Extended Term shall be as
provided in Section 3.0.2.
Section 2.03. Term of this Lease. The phrase "term" or "term of this
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Lease" shall mean the Initial Term and any Extended Term which may become
effective.
ARTICLE THREE
RENT AND ADDITIONAL RENT
Section 3.01. Annual Rent. Commencing on May 1, 1988, Tenant hereby
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agrees to pay a base annual rental per square foot of rentable area within the
Leased Premises per year (herein called "Annual Rent") in accordance with the
following schedule:
From May 1, 1988 through December 31, 1988,
From January 1, 1989 through December 31, 1989,
From January 1, 1990 through December 31, 1990,
From January 1, 1991 through December 31, 1991,
From January 1, 1992 through December 31, 1992,
From January 1, 1993 through December 31, 1997,
From January 1, 1998 through December 31, 2002,
Tenant will pay the Annual Rent and Additional Rent to Landlord at Suite
1600, 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000 or to such other person
or at such other place as the Landlord may designate in writing.
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Section 3.02. Extended Rent. The Annual rent for the first Extended Term
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shall be
Section 3.03. Additional Rent. The term "Additional Rent" shall mean all
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sums of money payable by Tenant under the Lease other than Annual Rent.
Section 3.04. Operating Expenses. Commencing on February 1, 1988 and
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thereafter during the term of this Lease, Tenant shall pay as Additional Rent,
the sum of (i) Tenant's Share of Operating Expenses (as hereinafter defined),
plus (ii) management fees equal to two and one-half percent (2-1/2%) of the sum
of (x) _________________________________________ Additional Rent payable under
this Section 3.04 for any period of less than one month shall be apportioned on
the basis of the number of days in such month. During December of each calendar
year during the term of this Lease, or as soon thereafter as practicable,
Landlord shall give Tenant written notice of its estimate of Additional Rent
payable under this Section 3.04 for the ensuing calendar year; provided,
however, Additional Rent during calendar year 1988 shall be calculated on the
basis of an estimate of Additional Rent in the amount of _____________________
of rentable area in the Leased Premises. On or before the first day of each
month during the ensuing calendar year, Tenant shall pay to Landlord one-twelfth
(1/12) of such estimated amounts together with the Annual Rent, provided that if
such notice is not given in December, Tenant shall continue to pay during the
ensuing calendar year on the basis of the amount payable during the calendar
year just ended, until the month after such notice is given. If at any time or
times it appears to Landlord that the Additional Rent payable under this Section
3.04 for the current calendar year will vary from Landlord's estimate by more
than five percent (5%), Landlord shall revise, by notice to Tenant, its estimate
for such year, and subsequent payments by Tenant for such year shall be based
upon such revised estimate. Failure to make a revision contemplated by the
immediately preceding sentence shall not prejudice Landlord's right to collect
the full amounts of Additional Rent.
(a) "Operating Expenses" shall mean the operating costs necessary to
manage, operate, repair and maintain the Building and Land in a manner deemed
reasonable and appropriate and for the best interest of the tenants of the
Building, to the extent they are properly allocable (in accordance with
generally accepted accounting principles consistently applied) to the
management, operation, repair and maintenance of the Building and Land
(including the Building Parking Area and the Common Building Facilities),
including, but not limited to, the items specified below in A. If the Building
is not one hundred percent (100%) occupied during any calendar year, the
Operating Expenses actually incurred shall be adjusted to reflect the amount of
Operating Expenses which would have been incurred at one hundred percent (100%)
occupancy for such calendar year. Any cost allocable to the items specified
below in B and any operating costs incurred after the expiration of the term of
this Lease shall be excluded from Operating Expenses.
A. Items Included In Operating Expenses.
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(1) salaries, wages, and all other expenses, including fringe benefits,
incurred for the employment of personnel who work full or part-time at the
Building or Land and a portion of such off-premises personnel as shall devote
time to the Building and Land, excluding accounting and key-punch operators and
excluding such personnel above the grade of office park manager (which office
park manager may also carry a title of vice president and/or general manager);
(2) the cost of materials and supplies;
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(3) the cost of replacements for tools and maintenance equipment
(excluding items of a capital nature, except as herein provided); all tools and
equipment purchased during the first year of occupancy of the Building shall be
considered capital items;
(4) amounts paid by the Landlord to independent contractors for services
(including full or part-time labor) and materials;
(5) water charges and sewer rents;
(6) the cost of repainting or otherwise redecorating any part of Common
Building Facilities;
(7) the cost of telephone service, postage, office supplies, maintenance
and repair of office equipment and similar charges related to operating of the
office park manager's office;
(8) premiums for insurance obtained by Landlord applicable to the Building
and Land, including but not limited to, fire, liability insurance and insurance
covering loss of rents;
(9) all costs, and expenses (other than those of a capital nature, except
as herein provided) of maintaining, repairing and replacing paving, curbs,
bridges, walkways, landscaping (including replanting and replacing flowers and
other plantings);
(10) the cost of electricity, fuel, trash and garbage removal, vermin
extermination, and snow, ice and debris removal;
(11) normal maintenance of mechanical and electrical equipment, including
heating, ventilating and air conditioning equipment but excluding capital
expenditures, except as herein provided;
(12) maintenance of elevators, restrooms, lobbies, hallways (including
replacement of carpeting and wall finishes) and other common and public areas
located in the Building;
(13) all costs and expenses, other than those of a capital nature (except
as herein provided), of maintaining, repairing or replacing the roof, common and
public lighting facilities and lamps;
(14) janitorial services, both exterior and interior, including janitor
equipment and supplies for the common and public areas;
(15) all Real Estate Taxes (as defined in Section 3.05 below) and all
personal property taxes and any other types of special assessments in lieu
thereof assessed against Landlord with regard to items of personal property used
in connection with the operation, maintenance and repair of the Building and
Land;
(16) depreciation of capital expenditures for capital items and
improvements to the Common Building Facilities (together with interest on the
undepreciated cost thereof at not more than the "prime rate" that may be from
time to time announced or published by The First National Bank of Atlanta) made
by Landlord after completion of the Building;
(17) rental payments for equipment and other items used in the operation or
maintenance of the Building and Common Building Facilities, whether or not the
cost of such items, if purchased, would be capital expenditures, but excluding
rental payments for any base building items such as HVAC equipment and
elevators;
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(18) costs of repairs, alterations, additional changes, replacements and
other items required by law or governmental regulation imposed after the date of
this Lease, including amortization for capital expenditures for same if they
relate to items or components of the Building which are not structural,
mechanical or electrical in nature;
(19) fees of an independent certified public accounting firm which relate
directly to the preparation and audit of the detailed statement of Operation
Expenses for the Building and Land as hereinafter provided and legal expenses
incurred by Landlord in connection with the maintenance, repair and operation of
the Building and Land;
(20) the pro rata share applicable to the Building of the expenses
(including rental payments, if any, with regard to maintenance equipment) in
connection with the landscaping and irrigation along Windy Ridge Parkway, Xxxxx
Xxxx Road Extension and any other roads now or hereafter constructed within
Wildwood Office Park, the landscaping and irrigation of the right of way areas
of Powers Ferry Road adjoining Wildwood Office Park, the maintenance and repair
of the gutters and curbways of Windy Ridge Parkway, Xxxxx Xxxx Road Extension
and such other roads now or hereafter constructed within Wildwood Office Park,
and the maintenance and repair of all non-impervious surfaces and storm drainage
systems within the rights-of-way of said Windy Ridge Parkway, Xxxxx Xxxx Road
Extension and such other roads. The pro rata share of such expenses shall be
equal to the product obtained by multiplying (i) the total amount of such
expenses (net of reimbursements from any commercial tenants) by (ii) a fraction,
the numerator of which shall be the number of rentable square feet contained in
the Building, and the denominator of which shall be the aggregate number of
rentable square feet contained in all the office buildings located along Windy
Ridge Parkway, Xxxxx Xxxx Road Extension and any other roads now or hereafter
constructed within Wildwood Office Park, all exclusive of basement areas. In no
event, however, shall. more than forty-five percent (45%) of the total of such
expenses be allocated to the Building;
(21) the cost of security services for the common and public areas of the
Building and Land; and
(22) all other costs and expenses directly related to the Building and
Land, including any reimbursements by Landlord to Tenant for work performed by
Tenant unless specifically excluded hereinafter.
Operating Expenses shall be "net" only, and for that purpose shall be
reduced by the amounts of any reimbursement, refund or credit received or
receivable by Landlord with respect to any item of cost that is included in
Operating Expenses including but not limited to heating, ventilating, air
conditioning and electricity. In the event any such reimbursement, refund or
credit is received or receivable by Landlord in a later year, it shall be
applied against the Operating Expenses for such later year; provided, however,
that, if the term of this Lease has expired, Tenant's Share of such item shall
promptly be refunded by Landlord to Tenant.
B. Items Excluded from Operating Expenses.
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(1) the cost of any work or service performed for any tenant (including
Tenant) at such tenant's cost;
(2) the cost of installing, operating and maintaining any specialty
service, such as an observatory, broadcasting facility, luncheon club, retail
store, sundry shop, newsstand, concession, but
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only to the extent such costs exceed those which would normally be expected to
be incurred had such space been general office space;
(3) the cost of correcting defects in construction;
(4) salaries of officers and executives of Landlord;
(5) the cost of any work performed or service provided (including
electricity) for any tenant of the Building (other than Tenant) to a materially
greater extent or in a materially more favorable manner than that furnished
generally to the tenants and other occupants (including Tenant), but only to the
extent such costs exceed those which would be incurred if such work or service
were not provided to a materially greater extent or in a materially more
favorable manner;
(6) the cost of any work performed or service provided (including
electricity) for any facility other than the Building, such as a garage, for
which fees are charged, but only to the extent of the fees collected by
Landlord, less administrative expenses incurred in the collection of such fees;
(7) the cost of any items for which Landlord is reimbursed by insurance,
condemnation or otherwise;
(8) the cost of any additions to the Building after the date of the Lease;
(9) the cost of any repair in accordance with Articles 10 and 12 of this
Lease entitled "Fire and Other Casualty - Casualty Insurance" and
"Condemnation";
(10) insurance premiums to the extent Landlord may be reimbursed therefor;
(11) interest on debt or amortization payments on any mortgage and rental
under any ground lease or other underlying lease;
(12) any real estate brokerage commissions or other cost incurred in
procuring tenants or any fee lieu of such commission;
(13) any advertising expenses incurred in connection with the marketing of
any rentable space;
(14) any costs representing an amount paid to any entity related to
Landlord which is in excess of the amount which would have been paid in the
absence of such relationship;
(15) rental payments for base building equipment such as HVAC equipment and
elevators, and rental payments for equipment not used in the operation or
maintenance of the Building or Common Building Facilities;
(16) any expenses for repairs or maintenance which are covered by
warranties and service contracts, to the extent such maintenance and repairs are
made at no cost to Landlord; and
(17) legal expenses arising out of the construction of the improvements on
the Land or the enforcement of the provisions of any lease affecting the Land or
Building including without limitation this Lease, except as herein provided.
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(b) If this Lease shall terminate on a day other than the last day of a
calendar year, the amount of Additional Rent payable pursuant to this Section
3.04 that is applicable to the calendar year in which such termination shall
occur shall be prorated on the basis which the number of days from the
commencement of such calendar year to and including such termination date bears
to 365. The termination of this Lease will not affect the obligations of
Landlord and Tenant pursuant to Section 3.08 to be performed after such
termination.
Section 3.05. Real Estate Taxes. Landlord shall pay when due all real
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estate taxes, assessments and other governmental charges which shall be levied
or assessed or which become liens upon the Leased Premises, Building, Building
Parking Area and Land, plus reasonable expenses incurred by Landlord in
contesting such taxes, assessments and charges (hereinafter called "Real Estate
Taxes"), and such Real Estate Taxes shall be included in Operating Expenses as
provided in Section 3.04(a) above.
(a) Real Estate Taxes shall not include (i) income tax, tax on rents or
rentals, excess profits or revenue tax, excise or inheritance tax, gift tax,
franchise tax, capital levy, transfer, estate, succession or other similar tax
or charge that may be payable by or chargeable to Landlord under any present or
future law of the United States or the state in which the Building is located or
imposed by any political or taxing subdivision thereof; (ii) interest or
penalties imposed upon Landlord for late payment of Real Estate Taxes; and (iii)
special assessments for improvements resulting from the expansion of the
Building and Land.
(b) If the Land, Building and improvements are not taxed as a separate and
independent tax lot, Landlord shall make application to the taxing authorities
to obtain a separate and independent assessment tax lot. If the taxing
authorities refuse to do so, the taxes assessed against the said tax lot shall
be equitably apportioned.
(c) The Real Estate Taxes which are includable in Operating Expenses
hereunder shall be the amount of Real Estate Taxes as are finally determined to
be legally payable by legal proceedings or otherwise. If allowed by law Landlord
shall pay Real Estate Taxes in installments.
(d) Any real estate tax incentives or abatements received by Landlord
shall be passed through to Tenant to the extent of Tenant's Share.
Section 3.06. Taxes Payable by Tenant. In addition to Annual Rent and
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other charges to be paid by Tenant hereunder, Tenant shall reimburse Landlord
upon demand for any and all taxes due and payable by Landlord (other than income
tax, excess profits or revenue tax, excise or inheritance tax, gift tax,
franchise tax, capital levy, transfer, estate, succession, or other similar tax
or charge) whether or not now customary or within the contemplation of the
parties hereto: (a) upon, measured by or reasonably attributable to the cost or
value of Tenant's equipment, furniture, fixtures and other personal property
located in the Leased Premises or by the cost or value of any improvements made
in or to the Leased Premises by Tenant other than building standard tenant
improvements made by Landlord, regardless of whether title to such improvements
shall be in Tenant or Landlord; (b) upon or measured by the monthly rental
payable hereunder, whether in addition to or in lieu of all or any portion of
Real Estate Taxes; (c) upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy by
Tenant of the Leased Premises or any portion thereof; and (d) upon this
transaction or any document to which Tenant (as a tenant) is a party creating or
transferring an interest in the Leased Premises. In the event that it shall not
be lawful for Tenant so to reimburse Landlord, the Annual Rent payable to
Landlord under this Lease shall be revised to net Landlord the same net Annual
Rent after
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imposition of such tax upon Landlord as would have been payable to Landlord
prior to the imposition of any such tax.
Section 3.07. Tax Contest. Landlord agrees to notify Tenant of any changes
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of more than 5% in the assessment for any Real Estate Taxes or any taxes payable
by Tenant to Landlord under Section 3.06 hereof within thirty (30) days after
Landlord receives the bills for such taxes. In the event Tenant requests
Landlord to do so in a timely manner, Landlord shall contest such change in said
assessment or tax rate, and provided that (i) Tenant shall pay and reimburse
Landlord for all costs and expenses incurred in connection with such contest,
including, without limitation, penalties, late charges, interest and other fees
payable in connection with such taxes, (ii) such contest shall operate to
suspend the collection of such taxes, (iii) Landlord shall not be exposed to any
civil or criminal liability as a result of such contest, and (iv) such contest
or any acts taken in connection therewith would not constitute a breach or
default under any security deed, mortgage or other instrument encumbering the
Land or Building or any portion thereof, or to which Landlord may be subject.
Section 3.08. Tenant's Share. (a) The term "Tenant's Share" shall mean
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the percentage (to the nearest 1/100 of 1%) determined by dividing the rentable
square feet in the Leased Premises by 614,543 rentable square feet in the
Building. Tenant's Share shall be adjusted to reflect any change in the rentable
square feet in the Leased Premises or the Building.
(b) Landlord's "Statement" shall mean a statement audited by a firm of
independent certified public accountants designated by Landlord setting forth in
detail the amount of each item included in Operating Expenses for the preceding
calendar year and the computation of any Additional Rent payable under Section
3.04 for such calendar year. The Tenant shall be furnished a copy of such
Statement. If the total of the Additional Rent payments made by Tenant during
the preceding calendar year on account of Operating Expenses pursuant to Section
3.04 is less than Tenant's Share of Operating Expenses for such period as shown
on the Statement, Tenant shall pay the difference within thirty (30) days after
its receipt of such Statement. If the total Additional Rent payments made by
Tenant during the preceding calendar year on account of Operating Expenses
pursuant to Section 3.04 hereof is more than Tenant's Share of such Operating
Expenses for such period as shown on the Statement, Landlord shall pay such
excess to Tenant by check accompanying such Statement, if Tenant is not then in
default under this Lease beyond any applicable grace period.
Landlord shall, at Tenant's request, make available to Tenant for
inspection and examination, all the books and records that relate to such
Statement. However, if the books and records are not made promptly available at
Landlord's offices upon request by Tenant, the Additional Rent due in that year
shall be due and payable thirty (30) days after the Tenant's request is honored.
In the event Tenant shall dispute Landlord's Statement and the parties cannot
resolve their differences within thirty (30) days thereafter, then the matter
shall be referred to arbitration as provided in Article 38. Pending resolution
of any dispute, by agreement, arbitration or otherwise, Tenant may not withhold
payment of so much of the amount claimed as shall be disputed.
(c) If Tenant has not received the Statement by the end of the calendar
year following the calendar year in which the Statement is due from Landlord, it
shall be conclusively presumed that Landlord has waived its claim against Tenant
for Tenant's Share of any additional Operating Expenses that would have been set
forth in such Statement.
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ARTICLE FOUR
PREPARATION FOR OCCUPANCY TERM COMMENCEMENT DATE
Section 4.01. Construction. Landlord has heretofore commenced, and shall
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pursue with due diligence and continuity until completion, the construction of
the improvements on the Land to Base Building Condition as provided in the
Workletter attached hereto as Exhibit D. Landlord shall also cause the
improvements within the Leased Premises to be constructed as provided in the
Workletter.
Section 4.02. Rental Commencement Date. (a) The term "Rental Commencement
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Date" shall mean the later to occur of (i) January 1, 1988, or (ii) the first
day after the date of Substantial Completion and delivery of actual possession
of the Leased Premises to Tenant free of all tenants and occupants. The term
"Substantial Completion" shall mean (except for Punch List Items) the date when:
(1) all of the Base Building Work and Layout Work as such terms are
defined in the Workletter (the "Work") shall have been completed;
(2) all of the Building's sanitary, electrical, heating, ventilating, air
conditioning and other systems, to the extent they serve or run through the
Leased Premises, shall be completed and in good order and operating condition;
(3) Landlord shall have obtained a Certificate of Occupancy (permanent or
temporary) for the portion of the Building that includes the Leased Premises,
permitting use of the Leased Premises and Building Parking Area by Tenant for
purposes set forth in this Lease;
(4) the Common Building Facilities as are required for access to the
Leased Premises shall have been completed;
(5) the exterior walls of the Building (including the installation of
glass therein) shall have been completed and the Building fully enclosed;
(6) the exterior of the Building, sidewalks, streets and plazas adjacent
thereto shall be free of scaffolding, hoists, construction equipment and
materials;
(7) the Building Parking Area shall have been completed; and
(8) Landlord shall have delivered to Tenant written certification from
Landlord's architect that Landlord has met its obligations under clauses (1)
through (7) of this subsection.
Notwithstanding the foregoing, if the Rental Commencement Date is a date
described in clause (ii) of this subsection (a), then the Rental Commencement
Date shall be accelerated by the number of days, if any, that Substantial
Completion is delayed due to (i) delays caused by Tenant or its architects,
engineers or consultants, (ii) delays in the completion of Tenant's leasehold
improvements caused by non-Building Standard items which require a longer lead
time than Building Standard items, and (iii) delays caused by changes made by
Tenant in the Tenant's leasehold improvements or the Design Control Drawings or
the Working Drawings and Specifications therefor, either before or during
construction of such improvements. In no event shall the Rental Commencement
Date be accelerated pursuant to the preceding sentence to a date prior to
January 1, 1988.
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(b) Tenant shall have at least thirty (30) days prior to the Rental
Commencement Date to install its equipment and furnishings and to perform other
such related activity in the Leased Premises preparatory to its occupancy. If
such activities if Tenant can, in Landlord's judgment, be performed without
interference with the Work, Landlord may elect for such. thirty (30) day period
to run concurrently with the prosecution of the Work. Landlord shall notify
Tenant at least forty-five (45) days in advance of Substantial Completion to
permit the Tenant to enter the Leased Premises for the purposes stated herein.
(c) Within sixty (60) days of the Rental Commencement Date or occupancy of
the Leased Premises by Tenant, if later, Landlord shall deliver to Tenant, at
Tenant's expense, one complete set of "as-built" plans (drawn on sepia) and
specifications for the Base Building Work and/or Layout Work.
(d) The rentable area of the Building and each full floor thereof shall be
deemed to be the amounts set forth on Exhibit E attached hereto, and the
rentable area of any partial floor comprising a part of the Leased Premises
shall be computed whenever required pursuant to this Lease in accordance with
Exhibit E with appropriate prorations and adjustments.
Section 4.03. Punch List Items. (a) The term "Punch List Items" shall mean
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details of construction, decoration and mechanical and electrical adjustment
which, in the aggregate, are minor in character and do not materially interfere
with Tenant's use or enjoyment of the Leased Premises, Building Parking Area or
the Common Building Facilities. Punch List Items shall be completed as promptly
as practicable under the circumstances after Substantial Completion. If Landlord
has obtained a temporary Certificate of Occupancy, Landlord shall, with due
diligence, complete the remaining work required to obtain, and shall thereupon
obtain, a permanent Certificate of Occupancy for the Leased Premises.
(b) After entering into occupancy of any part of the Leased Premises
Tenant shall, with reasonable promptness, bring to Landlord's attention any
deficiencies in construction which come to Tenant's attention, and Landlord
shall promptly correct the same at Landlord's expense.
Section 4.04. Excusable Delays. The term "Excusable Delays" as used in
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this Article shall mean any delay due to strikes, lockouts or other labor or
industrial disturbance, civil disturbance, future order of any government, court
or regulatory body claiming jurisdiction, act of the public enemy, war, riot,
sabotage, blockade, embargo, failure or inability to secure materials, supplies
or labor through ordinary sources by reason of shortages or priority or similar
regulation or order of any government or regulatory body, lightning, earthquake,
fire, storm, hurricane, tornado, flood, washout, and explosion. An Excusable
Delay shall be deemed to exist only so long as Landlord promptly and
specifically notifies Tenant in writing of such delay and exercises due
diligence to remove or overcome it.
Section 4.05. Tenant's Rights. Notwithstanding the foregoing or Article 24
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to the contrary, if for any reason other than delays which are caused by Tenant
which adversely affect the Schedule set forth in the Workletter, Landlord has
not substantially completed the Base Building Work and/or the Layout Work and
delivered actual possession of the Leased Premises to Tenant on or before April
1, 1988, Tenant may, by written notice to Landlord, complete the Work and deduct
the cost thereof from the Annual Rent and Additional Rent due and to become due
under this Lease or terminate this Lease effective as of the date of such notice
and such date shall be considered the expiration date.
Section 4.06. Tenant Allowance. Landlord shall furnish Tenant with a one
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time allowance for the construction of the leasehold improvements desired by
Tenant in the amount equal to the product of
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_______________________________. All costs and expenses of constructing and
installing the improvements desired by Tenant in the Leased Premises not
included with or covered by the Base Building Work or the allowance set forth
herein shall be the sole responsibility of Tenant, and shall be paid by Tenant
to Landlord as provided in the Workletter.
ARTICLE FIVE
LANDLORD'S TITLE AND ALLOWABLE USE
Section 5.01. Landlord's Covenant Regarding Title and Use. Landlord
-------------------------------------------
covenants as a condition of this Lease that Landlord has good marketable fee
title to the Building, Land and Building Parking Area and the right to make this
Lease for the term aforesaid; that the provisions of this Lease do not or will
not conflict with or violate the provisions of existing or future. agreements
between Landlord and third parties, that the Certificate of Occupancy for the
Building allows or will allow Tenant to use the Leased Premises for office
purposes; that the Leased Premises and Building Parking Area and the office uses
thereof for the purposes specified in this Lease are in conformity with all
applicable legal requirements including, without limitation, zoning and planning
ordinances, and environmental matters and do not violate applicable
restrictions, if any; and that it will deliver the Leased Premises to Tenant
free of all tenants and occupants.
Section 5.02. Landlord's Covenant Regarding Lawsuits. Landlord covenants
--------------------------------------
that as of the date hereof there are no claims, causes of action, lawsuits, or
judgments against the Building and Land which affect title, zoning or
environmental matters. In the event any such lawsuit is filed against the
Building and Land, Landlord shall notify Tenant within fifteen (15) days of
obtaining knowledge thereof.
ARTICLE SIX
SERVICES
Section 6.01. Services Provided by Landlord. (a) Landlord shall furnish to
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Tenant the following services, utilities, supplies and facilities, the cost of
which, except where expressly prescribed to be paid by Tenant, shall be included
within Operating Expenses:
(1) Access to the Leased Premises twenty-four (24) hours a day, seven (7)
days a week.
(2) Passenger elevator service twenty-four (24) hours a day, seven (7)
days a week and non-exclusive freight elevator service during normal business
hours and at other times as required by Tenant upon reasonable prior notice.
(3) Subject to curtailment as required by governmental laws, rules or
mandatory regulations, heat, ventilation and air conditioning in accordance with
Exhibit F, attached hereto, on Tenant's business days from 8:00 a.m. to 6:00
p.m. and on Saturdays from 8:00 a.m. to 1:00 p.m. and, at Tenant's request, at
all other times as hereinafter provided in this Article. Landlord hereby
represents that the Building's heating, ventilating and air conditioning systems
(hereinafter referred to as "HVAC") have the capacity, flexibility and ability
to maintain the design conditions specified in Exhibit F throughout the Leased
Premises and Common Building Facilities.
Landlord shall furnish HVAC beyond the above stated hours, provided that
notice requesting such service is delivered to Landlord before noon on the
business day when such service is required for
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that evening, and by noon of the preceding business day when such service is
required on a Saturday, Sunday or holiday. Landlord's Cost of supplying this
additional service shall be paid by Tenant or, alternatively, shall be shared
proportionately between Tenant and other tenants, if any, located in the same
HVAC zone who have requested and are receiving the benefit of such service at
the same time as Tenant. This service shall be furnished at "Landlord's Cost"
which shall mean the actual labor and utilities costs without a markup of any
kind. Landlord shall xxxx Tenant on or before the last day of the month
following the month in which such charges are incurred, and shall submit with
its invoice a tabulation of the hours and the dates on which the overtime HVAC
was furnished. Tenant shall reimburse Landlord therefor within thirty (30) days
after receipt of the invoice and such other data supporting the charges as
Tenant may reasonably request. If Landlord has not billed Tenant for such
charges within three months after the end of the lease year in which Landlord
claims the charges accrued, Landlord shall be conclusively presumed to have
waived such charges.
(4) Cleaning and janitorial services, in the Leased Premises, Common
Building Facilities and the Building Parking Area, including removal of refuse
and rubbish and furnishing and installation of washroom supplies in accordance
with Exhibit G.
(5) Hot and cold running potable water adequate for Tenant's purposes.
(6) Electricity for lighting and for operation of standard office
machines, appliances and equipment, and, in the event Tenant desires to install
major office machines, appliances or equipment such as main frame computers,
additional HVAC units, etc., the same shall be separately metered and Tenant
shall reimburse and pay Landlord from time to time within thirty (30) days after
receipt of a statement from Landlord, for all reasonable costs and expenses
actually incurred by Landlord in connection with such metering and the operation
of such machines, appliances and equipment.
(7) Provision, installation and replacement of light bulbs, tubes and
ballasts in the Leased Premises, Common Building Facilities and Building Parking
Area.
(8) Removal of ice and snow from the Common Building Facilities and
Building Parking Area.
(9) Vermin extermination.
(10) Facilities for Tenant's loading, unloading delivery and pick-up
activity, including access thereto twenty-four (24) hours a day, seven (7) days
week.
(11) Security for the Building and Building Parking Area which is
comparable to the security provided by landlords in other first class office
buildings in the North Atlanta office market; provided Landlord shall have no
responsibility to prevent, and shall not be liable to Tenant for losses due to
theft, burglary, or damage or injury to persons or property caused by persons
gaining access to the Leased Premises, and Tenant hereby releases Landlord from
all liability for such losses, damages or injury except as may be caused by the
gross negligence or willful misconduct of Landlord.
In the event the level or amount of the services provided by Landlord to
Tenant under subsections (a)(5), (a)(6) and/or (a)(11) shall, as a result of the
conduct of Tenant's business in the Leased Premises beyond the hours stated in
subsection (a)(3) above, exceed the level or amount of such services which is
comparable to the level or amount of such services provided by landlords in
other first class office buildings in the North Atlanta office market, Tenant
shall be responsible for the excess costs
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thereof and Landlord shall have the right to either (i) add such excess costs to
Tenant's Share of Operating Expenses, or (ii) xxxx Tenant separately for such
excess costs. In the event Landlord elects to xxxx Tenant for such excess costs,
Tenant shall reimburse Landlord therefor within thirty (30) days after receipt
of the invoice and such other supporting data as Tenant may reasonably request.
Section 6.02. Security to Leased Premises. Landlord shall not be required
---------------------------
to furnish security services to the Leased Premises, Tenant hereby assuming full
and sole responsibility for the supply of such services in the event Tenant
desires same.
Section 6.03. Landlord's Default - Tenant's Remedies. (a) After notice to
--------------------------------------
Landlord of a default in furnishing or paying for any utilities, services or
facilities to be furnished Tenant hereunder and failure or Landlord to cure such
default within a reasonable time specified by Tenant in the notice, Tenant may
cure such default and invoice Landlord therefore and Landlord shall reimburse
Tenant within thirty (30) days after receipt of the invoice.
(b) If the cleaning and janitor service is performed in accordance with
Exhibit G in the Leased Premises, Tenant may notify Landlord and Landlord shall
have thirty (30) days thereafter to improve this service to Tenant's reasonable
satisfaction. If Landlord fails do so, Tenant may, after fifteen (15) days
advance notice to Landlord, provide its own cleaning and janitorial service and
without adjustment to the Annual Rent and Additional Rent due and to become due
hereunder, except that the amount of cleaning and janitorial expenses included
in the Operating Expenses shall be equitably adjusted so that Tenant will not be
required to pay Tenant's Share of the cost of cleaning other tenants' space.
(c) If Landlord, in good faith, disputes any default claimed by Tenant
pursuant to this Article, within thirty (30) days after receiving Tenant's
notice or Tenant's invoice Landlord may submit such dispute to arbitration in
accordance with Article 33.
ARTICLE SEVEN
TENANT'S PARKING
Section 7.01. Tenant's Parking. (a) At all times during the term of this
----------------
Lease, without charge to Tenant, Landlord shall provide for the non-exclusive
use of the Tenant and its employees and invitees, a Building Parking Area to
accommodate a minimum of 3.5 parking spaces per 1,000 square feet of usable area
in the Building. The Building Parking Area shall be available for use twenty-
four (24) hours a day, every day of the year and shall be illuminated at all
times, and Landlord shall keep and maintain the Building Parking Area in a clean
condition.
(b) If Tenant, its employees, licensees or guests are not able to use the
Building Parking Area because of unauthorized use thereof, Landlord shall take
whatever steps are deemed reasonably necessary by Landlord including, if
appropriate, the posting of signs, the distribution of parking stickers and the
towing away of unauthorized vehicles, to end and prevent further unauthorized
use.
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ARTICLE EIGHT
USE
Section 8.01. Use. (a) Tenant shall have the right to use the Leased
---
Premises for offices, sales, display, storage, service, repair and use of
Tenant's products and equipment, engineering, education and training of Tenant's
customers and employees, and all other uses incidental and related thereto and.,
without limitation, for other lawful business and commercial purposes; all such
non-office uses shall be permitted to the extent (and only to the extent) the
same are permitted under the existing zoning ordinance or classification
affecting the Building and Land, a copy of which has been delivered by Landlord
to Tenant. Landlord represents that the Land is currently zoned "OI" (office
and institutional) under the zoning ordinance of Xxxx County, Georgia.
(b) To the extent any of the non-office uses set forth in subsection (a)
above or any other special uses lawfully permitted (i) are set forth in Tenant's
Plans and (ii) require a specific Certificate of Occupancy, or a special entry
on the general Certificate of Occupancy for the Building, Tenant shall obtain
the same. Tenant shall also be responsible for obtaining any special health,
safety or other governmental permit, approval or license required in connection
with any such specific use. If, after completion of the Layout Work, Tenant
shall institute a special use of the Leased Premises which requires an amendment
to the existing Certificate of Occupancy, Tenant shall be responsible for
obtaining the same as well as any other governmental permit, approval or license
required by applicable law. Landlord shall cooperate with Tenant and shall
execute all applications, authorizations and other instruments reasonably
required to enable Tenant to fulfill its responsibilities under this subsection.
ARTICLE NINE
REPAIRS AND MAINTENANCE
Section 9.01. Landlord's Repairs. Landlord shall perform all maintenance
------------------
and make all repairs and replacements to the Leased Premises, Leased Premises
Service Systems, Building, Building Service Systems, Building Parking Area, and
Common Building Facilities not specifically imposed upon Tenant by the
provisions hereof and not due to the willful act or negligence of Tenant, its
agents, contractors, employees, invitees and licensees. Without limiting the
generality of the foregoing sentence or the following, Landlord shall maintain,
repair and replace, as necessary, and keep in good order, safe and clean
condition (1) the plumbing, sprinkler, HVAC, electrical and mechanical lines and
equipment associated therewith, elevators and boilers, broken or damaged glass
and damage by vandals; (2) underground utility lines, tanks and transformers and
interior and exterior structure of the Building, the roof, exterior walls,
bearing walls, support beams, foundation, columns, exterior doors and windows;
(3) the interior walls, ceilings, floors and floor coverings (including carpets
and tiles) of the Common Building Facilities; (4) the improvements to the Land,
including ditches, shrubbery, landscaping and fencing, and (5) the Common
Building Facilities located within or outside the Building, including the common
entrances, corridors, doors and windows, loading dock, stairways and lavatory
facilities and the Building Parking Area and access ways therefor. The Landlord
shall perform all repairs and restoration required of Landlord by Article 10
"Casualty" and Article 12 "Condemnation".
Section 9.02. Tenant's Repairs. Tenant shall at all times during the term
----------------
of this Lease and at Tenant's sole cost and expense, keep the Leased Premises
and every part thereof in good condition and repair, except for ordinary wear
and tear, damage by fire or other casualty and damage caused by others for whom
Tenant is not responsible. Tenant shall also repair and replace any and all
damage to the
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Leased Premises, Leased Premises Service Systems, the Building, Building Service
Systems, Building Parking Area and Common Building Facilities, caused by the
willful acts or negligence of Tenant, its agents, contractors, employees,
invitees and licensees.
Section 9.03. Landlord's Failure to Make Repairs Tenant covenants and
-----------------------------------
agrees to notify Landlord of any necessary repairs or replacements which are
required to be made by Landlord under this Article. If Landlord fails to make
any repairs or replacements, which it is required to make under Section 9.01
within a reasonable period of time after notice by Tenant of each failure to
make such repairs or replacements, Tenant may do so.
Section 9.04. Emergency Repairs. If by reason of emergency, repairs or
------------------
replacements become necessary which by the terms hereof are the responsibility
of Landlord, Tenant may make such repairs or replacements which, in the opinion
of Tenant, are necessary for the preservation of the Leased Premises, or for the
safety or health of the occupants therein or in the Building, or of Tenant's
property; provided, however, that Tenant shall first make a reasonable effort to
inform Landlord before proceeding with such repairs or replacements.
Section 9.05. Tenant's Remedies. In the event Tenant makes any repairs or
------------------
replacements which are required to be made by Landlord hereunder after the
failure of Landlord to do so as provided herein, Tenant shall submit an invoice
to Landlord therefor and Landlord shall reimburse Tenant within thirty (30) days
following receipt of an invoice and data supporting the sum requested.
If Landlord, in good faith, disputes any default claimed by Tenant pursuant
to this Article, within thirty (30) days after receiving Tenant's notice or
invoice, Landlord may submit such dispute to arbitration in accordance with
Article 33.
ARTICLE TEN
FIRE AND OTHER CASUALTY - CASUALTY INSURANCE
Section 10.01. Damage or Destruction. (a) If any portion of the Leased
----------------------
Premises, Leased Premises Service Systems, such of the Building Service Systems
as serve the Leased Premises, Building Parking Area or Common Building
Facilities (hereinafter collectively referred to as the "damaged property") is
damaged by fire or other casualty, earthquake or flood or by any other insurable
cause of any kind or nature and the damaged property can, in the opinion of
Landlord's architect, be repaired within one hundred eighty (180) days from the
date of the damage, Landlord shall proceed immediately to make such repairs as
required by paragraph (d). This Lease shall not terminate, but Tenant shall be
entitled to a proportionate abatement of Annual Rent and Additional Rent payable
during the period commencing on the date of the damage and ending on the date
the damaged property is repaired as aforesaid and the Leased Premises are
delivered to Tenant. The extent of rental abatement shall be based upon the
portion of the Leased Premises rendered untenantable, unfit or inaccessible for
use by Tenant for the purposes stated in the Lease during such period. When
required by this Article, the architect's opinion shall be delivered to Tenant
within thirty (30) days from the date of damage.
(b) If (1) in the opinion of Landlord's architect, damage to the damaged
property cannot be repaired within one hundred eighty (180) days from the date
of the damage, or (2) Landlord commences but fails to substantially complete
repair of the damaged property as required by paragraph (d) within the one
hundred eighty (180) day period after commencement thereof, subject to an
extension of time allowed for an Excusable Delay, either party may terminate
this Lease by notice to the other within
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twenty (20) days from the date on which the architect's opinion is delivered to
Tenant when termination is based on the architect's opinion, and otherwise by
such notice within twenty (20) days from the end of the (180) day period, as it
may have been extended by an Excusable Delay. Annual Rent and Additional Rent
shall be apportioned as of the date of the damage and all prepaid Annual Rent
and Additional Rent shall be repaid.
(c) If, in the opinion of Landlord's architect, damage to the damaged
property cannot be repaired within sixty (60) days from the date of the damage
and such damage shall occur within the final twelve (12) months of the term of
this Lease, either party may terminate this Lease by notice to the other within
twenty (20) days from the date on which the architect's opinion is delivered to
Tenant; provided, however, Landlord's termination shall be rendered ineffective
and this Lease shall be reinstated and in full force and effect if within ten
(10) days after Tenant's receipt of such notice of termination, Tenant shall
exercise any option to extend the term of this Lease set forth in this Lease.
(d) If neither party exercises its option to terminate hereunder Landlord
shall, with due diligence, repair the damaged property as a complete
architectural unit of substantially the same proportionate usefulness, design
and construction existing immediately prior to the date of the damage. Tenant
shall be entitled to a proportionate abatement of Annual Rent and Additional
Rent in the manner and to the extent provided in paragraph (a).
(e) Notwithstanding provisions of this Article or Article 24 to the
contrary, if by operation of this Article Landlord undertakes but fails to
repair the damaged property as required by the provisions of this Article and
deliver the Leased Premises to the Tenant within two hundred seventy (270) days
from the date of the damage, for any reason other than a delay caused by an act
or omission of Tenant, either party may terminate this Lease by notice to the
other within two hundred eighty (280) days from the date of the damage. In such
event, this Lease and the term hereof shall terminate on the date specified in
the notice and Annual Rent and Additional Rent shall be apportioned as of the
date of the damage and all prepaid Annual Rent and Additional Rent shall be
repaid.
(f) Landlord and Tenant hereby covenant and agree that in the event of
loss, damage or destruction, and, as a consequence, Landlord is hereby required
to repair and restore the Leased Premises, such obligation to repair and restore
shall be limited to the proceeds received by Landlord under the policies of
insurance provided by the Landlord, and such proceeds shall be applied to repair
and reconstruct the damaged property to the extent required by this Lease,
subject to any election of Landlord or Tenant to terminate the Lease as herein
provided and subject to the provisions of any then existing mortgage or Deed to
Secure Debt on the Leased Premises, Building or Land, or any portion thereof.
Section 10.02 Casualty and Liability Insurance. (a) Landlord shall, from
---------------------------------
and after the date hereof, maintain All Risk insurance covering the Building,
Building Parking Area (if applicable) and Landlord's property in the Leased
Premises against loss, damage, or destruction. Such coverage shall equal at
least one hundred percent (100%) of the replacement cost of the Building,
Building Parking Area and Landlord's property in the Leased Premises, exclusive
of architectural and engineering fees, excavation, footings and foundations.
(b) Landlord shall also, from and after the date hereof, maintain general
public liability and property damage insurance in the minimum amounts of Five
Million and No/100 Dollars ($5,000,000.00) in connection with any single
occurrence of bodily injury or death and Five Hundred Thousand and No/100
Dollars ($500,000.00) in connection with claims for property damage.
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(c) Tenant shall from and after the date Tenant (as tenant) commences any
activities whatsoever in the Leased Premises, whether before or after the Rental
Commencement Date, maintain insurance covering the personal property and
leasehold improvements paid for by Tenant in the Leased Premises against loss,
damage or destruction caused by boiler explosion or machinery breakdown, fire
and the perils specified in the standard extended coverage endorsement, by
vandalism and malicious mischief, and by sprinkler, gas, water, steam and sewer
leakage. Fire and extended coverage shall equal actual cash value less any
deductible.
(d) Landlord and Tenant each hereby waives its respective right of
recovery against the other and each releases the other from any claim arising
out of loss, damage or destruction to the Building, Building Service Systems,
Leased Premises, Leased Premises Service Systems, Building Parking Area, or
contents thereon or therein, whether or not such loss, damage or destruction may
be attributable to the negligence of either party or its respective agent,
visitor, contractor, servant or employee. Each policy shall include a waiver of
the insurer's rights of subrogation against the party hereto who is not an
insured under said policy.
(e) Tenant shall maintain general public liability and property damage
insurance covering the legal liability of Landlord and Tenant against all claims
for any bodily injury or death of persons and for damage to or destruction to
property occurring on, in or about the Leased Premises and arising out of the
use or occupation of the Leased Premises by Tenant in the minimum amounts of
Five Million and No/100 Dollars ($5,000,000.00) in connection with any single
occurrence of bodily injury or death and Five Hundred Thousand and No/100
Dollars ($500,000.00) in connection with claims for property damage. Such policy
shall provide that it may not be cancelled or materially changed without at
least thirty (30) days' prior written notice to each named insured.
(f) All insurance required hereunder shall be written by companies of
recognized financial standing which are authorized to do insurance business in
the State of Georgia. Tenant shall deliver to Landlord a Certificate of
Insurance showing Landlord as a named insured under the general public liability
and property damage insurance policy.
(g) The minimum limits of liability of any insurance required in specific
dollar amounts under this Section 10.02 shall automatically increase on every
five (5) year anniversary of the Rental Commencement Date to the amount equal to
the applicable dollar amount specified herein multiplied by a fraction, the
numerator of which is the CPI (as herein defined) for the month preceding the
applicable anniversary date and the denominator of which is the CPI for the
month preceding the Rental Commencement Date. As used herein, the term "CPI"
shall mean the Consumer Price Index (all items; Urban Wage Earners and Clinical
Workers, Atlanta, Georgia SMSA; Base Year 1967-100) as published by the United
States Bureau of Labor Statistics. In the event the Bureau of Labor Statistics
changes the current base year (1967-100) or ceases to publish a Consumer Price
Index using such base year, then the numerator specified above shall be changed
to reflect what that number would have been if the base year had not changed or
ceased to be published. In the event the United States Bureau of Labor
Statistics or any successor government agency discontinues the publication of
the Consumer Price Index, then such dollar amounts shall be adjusted on the
basis of such nearly comparable data as is then available and regularly
published by a recognized financial or governmental authority or institution
designated by Landlord and approved by Tenant, each acting reasonably and in
good faith.
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ARTICLE ELEVEN
LIABILITY
Section 11.01. Indemnification by Tenant. Subject to the provisions of
--------------------------
Section 10.02(d), Tenant hereby indemnifies and agrees to hold Landlord harmless
from and against any and all loss, cost, damage or expense (including, without
limitation, all attorneys' fees and costs of litigation) ever suffered or
incurred by Landlord arising out of Tenant's use and occupancy of the Leased
Premises, Building and Land based upon, arising from or connected in any manner
with (a) injury to or the death of any person or damage to any property
occurring on the Leased Premises, (b) the use, possession, operation or
occupation of the Leased Premises or any part thereof, (c) any negligence on the
part of Tenant or its employees, agents, contractors, servants, licensees, or
invitees, and (d) the violation by Tenant of any term, condition or covenant of
this Lease or of any restriction or regulation affecting the Leased Premises or
any part thereof.
Section 11.02. Indemnification by Landlord. Subject to the provisions of
----------------------------
Section 10.02(d), Landlord hereby indemnifies and agrees to hold Tenant harmless
from and against any and all loss, cost, damage or expense (including, without
limitation, all attorneys' fees and costs of litigation) ever suffered or
incurred by Tenant arising out of any act or omission. of Landlord or its
tenants (excluding Tenant), agents, employees, contractors or servants,
occurring in the Common Building Facilities and the Building Parking Area during
the term of this Lease, but only to the extent of the proceeds of insurance
actually received from Landlord's comprehensive general liability insurance with
respect to the Building and Land.
ARTICLE TWELVE
CONDEMNATION
Section 12.01. Taking - Termination of Lease. If at any time during the
-----------------------------
term of the Lease the whole of the Building shall be taken for any public or
quasi-public use, under any statute, or by right of eminent domain, except as
provided in Section 12.03, this Lease shall terminate on the date of such
taking. If less than all of the Building shall be so taken and in Tenant's
reasonable opinion the remaining part is insufficient for the conduct of
Tenant's business Tenant or Landlord may, by notice to the other within sixty
(60) days after notice of such taking, terminate this Lease. If this lease is so
terminated, this Lease and the term hereof shall end on the date that the
condemning authority actually takes possession of the part condemned and the
Annual Rent and Additional Rent shall be apportioned and paid to the date of
such taking.
Section 12.02. Taking - Lease Continues. If less than all of the Leased
-------------------------
Premises shall be taken and, in Tenant's reasonable opinion communicated by
notice to Landlord within sixty (60) days after notice of such taking, Tenant is
able to gain access to and continue the conduct of its business in the part not
taken, this Lease shall remain unaffected, except that Tenant shall be entitled
to a pro rata abatement of Annual Rent and Additional Rent based on the
proportion which the area of the Leased Premises so taken bears to the area of
the space demised hereunder immediately prior to such taking.
Section 12.03. Temporary Taking. If the use and occupancy of the whole or
----------------
any part of the Leased Premises is temporarily taken for a public or quasi-
public use for a period in excess of four (4) months but less than the balance
of the term, at Tenant's or Landlord's option to be exercised in writing and
delivered to the other not later than sixty (60) days after the date Tenant is
notified of such taking,
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this Lease and the term hereby granted shall terminate on the date of such
taking. If this Lease remains in effect Tenant shall be entitled to a
proportionate abatement of Annual Rent and Additional Rent in the manner and to
the extent provided in Section 12.02 or, at its option, receive that portion of
the award for such taking which represents compensation for the value of
Tenant's leasehold estate and the term demised hereunder, in which case Tenant
shall continue to pay in full the Annual Rent and Additional Rent when due.
Section 12.04. Landlord's Award. Landlord shall be entitled to receive the
-----------------
entire award or awards in any condemnation proceeding without deduction
therefrom for any estate vested in Tenant and Tenant shall receive no part of
such award or awards from Landlord or in the proceedings except as otherwise
expressly provided in this Article. Subject to the foregoing, Tenant hereby
assigns to Landlord any and all of its right, title and interest in or to such
award or awards or any part thereof.
Section 12.05. Tenant's Award. In the event of a taking hereunder, Tenant
---------------
shall be entitled to appear, claim, prove and receive in the condemnation
proceeding (1) the unamortized value over the term of this Lease of the
improvements and alterations to the Leased Premises, depreciated from the date
of installation thereof to the date of taking, provided the same shall have been
installed by and at Tenant's expense but regardless of whether the improvements
and alterations might be considered a part of the Leased Premises or shall be or
become the property of Landlord under the terms of this Lease; (2) the value of
Tenant's fixtures; (3) the cost of relocation and (4) special awards or
allowances provided by law to tenants in the event their rental space is taken
by eminent domain.
Section 12.06. Restoration by Landlord. If there is a taking hereunder and
------------------------
this Lease is continued, Landlord shall, at its expense, proceed with reasonable
diligence to repair, alter and restore the Building as a complete architectural
unit of substantially the same proportionate usefulness, design and construction
existing immediately prior to the date of taking.
Section 12.07. Definitions. Taking by condemnation or eminent domain
------------
hereunder shall include the exercise of any similar governmental power and any
sale, transfer or other disposition of the Building or Land in lieu or under
threat of condemnation. The term "Building", as used in this Article, shall
include the Leased Premises and Building Parking Area, Common Building
Facilities and access ways thereto.
ARTICLE THIRTEEN
ALTERATIONS AND IMPROVEMENTS
Section 13.01. Alterations and Improvements. (a) Tenant may place
-----------------------------
partitions, trade or other fixtures (including lighting fixtures), personal
property, machinery, equipment and the like in the Leased Premises and may make
alterations and improvements to the Leased Premises Services Systems and such
non-structural improvements and alterations in the interior of the Leased
Premises thereof as it may desire at its own expense.
(b) Tenant may make alterations and improvements to the Building Service
Systems and structural alterations and improvements in the Leased Premises only
with Landlord's consent, which consent may be withheld for any reason. Tenant
shall be responsible for obtaining any permits with regard to any such
alteration and improvements made by Tenant pursuant to this Section 13.01.
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Section 13.02. Ownership of Tenant's Alterations and Improvements. All
---------------------------------------------------
partitions, trade or other fixtures (including lighting fixtures), personal
property, machinery, equipment and structural and non-structural alterations and
improvements paid for by Tenant prior to or during the term shall remain the
property of Tenant during the term of this Lease.
Section 13.03. Removal. Provided Tenant is not in default hereunder,
--------
Tenant may remove all or any of its removable partitions, trade fixtures,
personal property, and unattached, removable machinery and equipment upon the
expiration or earlier termination of this Lease, or at its option, Tenant may
abandon the same, in whole or in part, to Landlord at the expiration or earlier
termination of the term by vacating the Leased Premises without removing the
same. In the event of the removal of such things or any of them, Tenant shall
not be required to remove pipes, wires and the like from the walls, ceilings or
floors, provided Tenant properly cuts, disconnects and caps such pipes and wires
and seals them off, if necessary, in a safe and lawful manner.
Section 13.04. Landlord's Approval. (a) In the event Landlord does consent
--------------------
to structural alterations and structural improvements to the Leased Premises
and/or the Building Service Systems, Landlord shall have the right to approve
Tenant's plans and specifications and a list of Tenant's proposed contractors
for structural alterations and structural improvements to the Leased Premises
and to the Building Service Systems.
(b) Tenant shall make a request for approval hereunder by submission of a
list of proposed contractors and plans and specifications for the work to be
performed by Tenant under this Section and Section 13.01(b). Landlord shall
respond within five (5) business days from receipt of the same, approving those
contractors and those portions of the work that are acceptable and disapproving
those contractors and portions of the work that are, in Landlord's judgment,
reasonably exercised, unacceptable and with respect to the plans, specifying in
detail the nature of Landlord's objection. Failure of Landlord to respond as
aforesaid shall be tantamount to approval of such contractors and plans and
specifications and Tenant's request in all requests.
Section 13.05. Definitions. (a) The term "Leased Premises Services
-----------
Systems" shall mean the electrical, HVAC, plumbing and telecommunication
(voice/data/signal) systems that directly service the Leased Premises from a
localized point of distribution. Such systems are dedicated to the Leased
Premises at their available capacities and do not service any space other than
the Leased Premises.
(b) The term "Building Service Systems" shall mean the electrical, HVAC,
plumbing and telecommunication (voice/data/signal) systems that service the
Building up to the point of localized distribution serving the Leased Premises
only. Such systems provide the main source of supply and distribution throughout
the Building.
(c) The term "structural" shall mean such as affect bearing walls, support
beams, foundations and columns.
Section 13.06. Landlord's Alterations and Improvements. Unless required by
---------------------------------------
law, Landlord shall not, without Tenant's consent which shall not be
unreasonably withheld or delayed, at any time during the term of this Lease make
any substantial addition to the Building or alteration to the external
appearance thereof.
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ARTICLE FOURTEEN
LANDLORD'S ACCESS
Section 14.01. Landlord's Access. (a) Landlord shall, upon advance oral
------------------
notice to Tenant (except in an emergency), have the right at all reasonable
times during Tenant's business hours to inspect the Leased Premises and show the
same to prospective mortgagees and purchasers and to prospective tenants during
the last twelve (12) months of the term and, at all times to make repairs or
replacements as required by this Lease or as may be necessary; provided,
however, that Landlord shall use all reasonable efforts not to disturb Tenant's
use and occupancy of the Leased Premises.
(b) Landlord shall have the right to enter the Leased Premises after
Tenant's business hours to perform cleaning and janitorial services.
(c) Landlord shall have the right to enter the Leased Premises in
emergencies.
(d) Tenant may designate one or more areas in the Leased Premises as
secure areas, and Landlord shall have no access thereto without being
accompanied by a designated representative of Tenant except in the case of
emergencies.
ARTICLE FIFTEEN
COMPLIANCE WITH LAWS
Section 15.01. Tenant's Compliance with Laws. Tenant shall comply with all
-----------------------------
laws, rules, ordinances, orders and regulations of any federal, state and local
authority which are applicable to Tenant's use and operation of the Leased
Premises. Nothing herein contained shall be deemed to impose any obligation upon
Tenant to make any structural alterations, improvements or repairs to the Leased
Premises.
Section 15.02. Landlord's Compliance with Laws. (a) Landlord shall comply
--------------------------------
with all rules, regulations, orders, laws, ordinances, and legal requirements
and standard issued thereunder which affect (1) the Leased Premises, the
Building, the Land and the Building Parking Area, Common Building Facilities and
Building; (2) the design, construction and operation of the Building (including
the Leased Premises); or (3) which relate to the performance by Landlord of any
duties or obligations to be performed by Landlord under this Lease. Without
limiting the foregoing, Landlord shall comply or cause the Building to comply
with all energy conservation, environmental, and fire safety and health laws,
regulations and codes.
(b) All boilers and other pressure vessel equipment shall be constructed
and maintained by Landlord in accordance with the ASME Standards and Code.
(c) Landlord shall regularly inspect and maintain the HVAC system and
treat the cooling tower water with EPA registered chemicals to prevent the
buildup of slime, algae and bacteria following the latest recommendations of the
Center for Disease Control or current practices of the American Society of
Heating, Refrigeration and Air Conditioning Engineers.
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ARTICLE SIXTEEN
SURRENDER OF POSSESSION OF THE LEASED PREMISES
Subject to Section 13.03, at the expiration or earlier termination of the
term of this Lease, Tenant will (a) peaceably yield up to Landlord the Leased
Premises in good order and condition, excepting ordinary wear and tear and (b)
repair all damage to the Leased Premises and to the Building caused by Tenant's
removal of its property.
ARTICLE SEVENTEEN
SIGNS
Section 17.01. Tenant's Signs. Tenant may place its signs on the entrance
---------------
doors to the Leased Premises and on floors wholly leased by Tenant, provided the
same comply with Landlord's graphic specifications.
Section 17.02. Directory. Landlord at its own cost and expense shall place
----------
a directory in the Building lobby and shall cause Tenant's name and the name of
each division, subsidiary or affiliate thereof occupying space in the Building
to be affixed thereto or included therein.
Section 17.03. Building Sign. (a) If Tenant shall lease and occupy fifty-
--------------
one percent (51%) or xxxx of the rentable area in the Building, it shall have
the exclusive right to place one (1) identification sign on the Land, provided
that such sign shall comply in all respects with the criteria established by
Landlord.
(b) If Tenant occupies fifty-one percent (51%) or more of the rentable
area of the Building, Tenant shall have the right to cause Landlord to name the
Building the "IBM Building" or such derivation thereof as may be reasonably
determined by Tenant.
(c) If Tenant occupies fifty-one percent (51%) or more of the rentable
area of the Building and if at any time after the execution of this Lease
Landlord changes the name of the Building or the exterior signs affixed to the
Building or the Land, Landlord shall notify Tenant at least sixty (60) days
prior to the date of such a change. If the proposed new name or signs identify
or may be associated with a competitor of Tenant and Landlord denies Tenant's
written request, made within thirty (30) days after notification of the proposed
change, not to use the proposed name or install the new sign, Tenant may, at its
option exercised by notice to Landlord within ninety (90) days from the date the
proposed name is adopted or the sign is installed, terminate this Lease. In such
event, the term hereof shall end on the date specified in Tenant's notice.
Annual Rent and Additional Rent shall be apportioned and paid to the date of
termination and Tenant shall have no further liability to Landlord arising out
of this Lease. It is understood and agreed that Tenant's rights and Landlord's
obligations under Section 17.03 shall be effective only if and so long as
International Business Machines Corporation is the "Tenant" under this Lease and
occupies at least 51% of the rentable area of the Building.
Section 17.04. Compliance with Code. All signs installed by Landlord and
----------------
Tenant shall be in compliance with applicable code and shall be installed in a
good and workmanlike manner.
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ARTICLE EIGHTEEN
SUBORDINATION AND NON-DISTURBANCE
This Lease shall be subordinate and subject to all ground and underlying
leases and to any first mortgages or deeds to secure debt thereon and to any
first mortgages or deeds to secure debt covering the fee of the Building,
Building Parking Area or Land, that now or may hereafter affect the Building,
Building Parking Area or Land, and to all renewals, modifications or
replacements provided, however, that with respect to any ground lease,
underlying lease and/ or first mortgage or deed to secure debt, within thirty
(30) days after Tenant executes this Lease and, with respect to any future
ground lease, underlying lease and/or first mortgage or deed to secure debt, on
or before the effective date thereof, Landlord shall obtain from its ground
lessor, underlying lessor and/or mortgagee a written agreement with Tenant which
shall be binding on their respective successors and assigns and shall provide
that so long as this Lease shall be in full force and effect (a) Tenant shall
not be joined as a defendant in any proceeding which may be instituted to
terminate or enforce the ground or underlying lease or to foreclose or enforce
the mortgage or deed to secure debt; (b) Tenant's possession and use of the
Land, Building Parking Area and Building in accordance with the provisions of
this Lease shall not be affected or disturbed by reason of the subordination to
or any modification of or default under the ground or underlying lease or first
mortgage or deed to secure debt; and (c) the ground and underlying lessor and
mortgagee will subordinate and subject their respective rights, if any, to the
insurance proceeds payable under policies of insurance required to be carried by
Landlord under Article 10 hereof. If the ground or underlying lessor and/or
mortgagee or any successor in interest shall succeed to the rights of Landlord
under this Lease, whether through possession, surrender, assignment, subletting,
judicial or foreclosure action, or delivery of a deed or otherwise, Tenant will
attorn to and recognize such successor-landlord as Tenant's landlord and the
successor-landlord will accept such attornment and recognize such successor-
landlord as Tenant's rights of possession and use of the Leased Premises in
accordance with the provisions of this Lease. This clause shall be self-
operative and no further instrument of attornment or recognition shall be
required.
ARTICLE NINETEEN
MECHANICS' LIENS
During the term of this Lease Tenant shall discharge by payment, bond or
otherwise mechanics' liens filed against the Building for work, labor, services
or materials claimed to have been performed at or furnished to the Leased
Premises for or on behalf of Tenant, except when the mechanics' liens are filed
by a contractor, subcontractor, materialman or laborer of Landlord, in which
event Landlord shall discharge the liens by payment, bond or otherwise.
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ARTICLE TWENTY
INTENTIONALLY OMITTED
ARTICLE TWENTY-ONE
OPTION FOR ADDITIONAL SPACE
(a) Tenant has requested that Landlord, and Landlord has agreed and does
hereby, grant unto Tenant two (2) mutually exclusive expansion options (both of
the expansion options being herein called the "Expansion Options" and each
respective Expansion Option, in chronological order, is referred to herein as
the "First Expansion Option" and the "Second Expansion Option", respectively)
exercisable as hereinafter set forth pursuant to subsection (b) hereof.
(b) For each Expansion Option, Tenant shall be entitled to lease, at
Tenant's election, space comprising a maximum of 25,000 square feet of
contiguous rentable area on, at Landlord's option, either the fifth (5th) floor
of the south tower of the Building or the eighth (8th) floor of the Building
(such space subject to an Expansion Option being herein referred to as
"Expansion Space"). The First Expansion Option shall be exercisable by Tenant by
written notice to Landlord given on or before July 1, 1992. The Second Option
shall be exercisable by Tenant by written notice to Landlord given on or before
July 1, 1997. Each such written notice of exercise of an Expansion Option shall
specify the amount of Expansion Space (up to 25,000 square feet of contiguous
rentable area) requested by Tenant. Landlord shall deliver possession of the
Expansion Space requested by Tenant during 1993, in the case of the exercise of
the First Expansion Option, and 1998, in the case of the exercise of the Second
Expansion Option. Landlord shall have the right to deliver such Expansion Space
to Tenant in either one or two increments, provided that the first increment
must be contiguous to the existing Leased Premises and include at least fifty
percent (50%) of the total Expansion Space requested by Tenant. The specific
date(s) within the applicable year for delivery by Landlord to Tenant of such
Expansion Space shall be determined by Landlord. The exercise of each Expansion
option shall be subject to the following provisions: (i) Tenant may not exercise
an Expansion Option if Tenant has prior thereto received a notice of default in
the performance of Tenant's covenants under this Lease from Landlord and Tenant
has not then cured such default; (ii) if the amount of Expansion Space
designated by Tenant shall be such that the portion of a floor not leased by
Tenant shall contain less than 5,000 square feet of contiguous rentable area,
Landlord shall have the right to either increase the size of the Expansion Space
to include all the remaining portion of such floor, or to reduce the size of the
Expansion Space so that the remaining portion of such floor not leased by Tenant
shall contain at least 5,000 square feet of contiguous rentable area; and (iii)
any Expansion Space Tenant so elects to lease shall become a part of the Leased
Premises upon the delivery thereof to Tenant (whether in one or two increments)
and Tenant shall be obligated to commence the payment of Annual Rent and.
Additional rent thereon in accordance with subparagraph (e) below.
(c) Any reference to "square feet of contiguous rentable area" shall mean
space on any floor which is contiguous to space then leased by Tenant on such
floor and/or space on another floor which is directly above or directly below at
least a portion of other space then leased by Tenant. The location and
configuration of the Expansion Space shall be determined by Landlord, provided
that such Expansion Space which does not comprise a full floor of the Building
shall be configured in a manner that is
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practicable for Tenant's intended use thereof and shall have independent
corridor access to the rest rooms, elevator and elevator lobby area on such
floor.
(d) Tenant hereby acknowledges and agrees that any Expansion Space which
is leased by Tenant under an Expansion Option in accordance with this Article
and which was improved for occupancy in any way and for any tenant prior to the
commencement of Tenant's leasing of such Expansion Space shall be delivered to
Tenant for occupancy hereunder in an "as is" condition (but free of all tenants
and occupants) and shall be accepted as such by Tenant. With respect to any
Expansion Space which is leased by Tenant under an Expansion Option in
accordance with this Article which has not been improved for occupancy for any
tenant, Landlord shall (i) either furnish, or provide an allowance equal to the
cost of furnishing, the Building Standard improvements described in Article III
of the Workletter, plus (ii) furnish Tenant with a one-time allowance for the
construction of the leasehold improvements desired by Tenant in an amount equal
to the product obtained by multiplying (x) the number of rentable square feet in
the Expansion Space times (y) the dollar amount set forth in clause (x) of
Section 4.06 hereof. All costs and expenses in constructing and installing the
improvements desired by Tenant in the Expansion Space not included with or
covered by Landlord's work or the allowance set forth herein shall be the sole
responsibility of Tenant. The allowance payable by Landlord to Tenant for
construction of the leasehold improvements in the Expansion Space shall be paid
by Landlord to Tenant at the times and in the same manner and upon the same
terms and conditions as set forth in Section 4.06 of this Lease.
(e) Annual Rent for the Expansion Space which is leased by Tenant under
the First Expansion Option and under the Second Expansion Option in accordance
with this Article shall be calculated at the same rental rate and shall be
subject to the same adjustments as for other portions of the Leased Premises as
provided in Section 3.01 of this Lease. Tenant shall be obligated to commence
the payment of Annual Rent and Additional Rent for each increment on the earlier
of (i) the date which is four (4) months after the delivery of such Expansion
Space (or increment thereof) by Landlord to Tenant for the construction by
Tenant of its leasehold improvements in the Expansion Space, or (ii) the date
Tenant takes occupancy of the Expansion Space for business purposes.
(f) Landlord shall not be liable for failure to deliver possession to
Tenant of any space covered by an Expansion Option or any part thereof by reason
of the unlawful holding over or retention of possession of any previous tenant,
tenants or occupants of same, nor shall such failure impair the validity of this
Lease, nor extend the term hereof. However, Landlord does covenant that it will
use reasonable diligence to deliver possession of all space covered by an
Expansion Option to Tenant upon the respective dates above-described and
Landlord shall pay to Tenant any holdover rentals collected by Landlord from
such tenant or occupant to the extent they exceed the sums Tenant would have
paid had such tenant or occupant not held over, less the costs incurred by
Landlord in attempting to remove such holdover tenant(s). Additionally, if
Tenant reasonably believes Landlord is not being diligent in its efforts to
deliver possession of any Expansion Space to Tenant, Tenant shall so notify
Landlord in writing, whereupon Tenant may itself bring such actions or
proceedings (which must meet with Landlord's reasonable approval) necessary to
deliver such possession to Tenant, but Tenant shall indemnify and hold harmless
Landlord from any and all costs (including attorney's fees or costs of suit),
expenses, damages or liabilities arising thereby.
(g) The failure by Tenant to give timely the written notice described in
subparagraph (a) of this Article shall constitute Tenant's decision not to
exercise the respective Expansion Option and Tenant shall be considered to have
given up its rights to the Expansion Space covered by said Expansion Option. If
Tenant fails or elects not to lease the Expansion Space covered by an Expansion
Option, Landlord shall be free to lease the same to third parties.
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(h) Upon the exercise of an Expansion Option pursuant to the terms hereof,
Landlord and Tenant shall execute, at the request of either, an instrument
delineating and describing the portions of the floor(s) added to this Lease
thereby and any then unsatisfied conditions thereto.
(i) The term for each Expansion Space added to this Lease pursuant to the
Expansion Options shall terminate when the term of this Lease for the initial
Leased elects not to lease the Expansion Space covered by an Expansion option,
Landlord shall be free to lease the same to third patties.
(h) Upon the exercise of an Expansion Option pursuant to the terms hereof,
Landlord and Tenant shall execute, at the request of either, an instrument
delineating and describing the portions of the floor(s) added to this Lease
thereby and any then unsatisfied conditions thereto.
(i) The term for each Expansion Space added to this Lease pursuant to the
Expansion Options shall terminate when the term of this Lease for the initial
Leased Premises described in Section 1.01 terminates. Tenant shall renew the
term of this Lease as to said Expansion Space whenever Tenant renews the term of
this Lease as to the initial Leased Premises. Notwithstanding any provisions
hereof to the contrary, in no event shall this Lease continue in force and
effect as to any space covered by the Expansion Options beyond the termination
of this Lease and any renewals and extensions thereof as to said initial Leased
Premises.
(j) Tenant may not assign its Expansion options except to a permitted
assignee of all of Tenant's rights under this Lease, but Tenant may sublease
this space covered thereby if and to the extent permitted in Article 27.
ARTICLE TWENTY-TWO
TENANT'S SECURITY IN THE LEASED PREMISES
Section 22.01. Limited Restrictions Against Other Tenants. In order to
-------------------------------------------
protect Tenant's trade secrets and confidential information in the Leased
Premises, Landlord agrees that with respect to the Building, Landlord will not
lease or consent to any lease, sublease or consent to the assignment of any
lease or sublease to any person, firm or corporation which, as a major part of
its business (1) leases or sells data processing equipment, or typewriting,
photocopying or other products similar to the products sold by Tenant, or
manufactures, leases or sells parts or supplies manufactured by Tenant for such
equipment or products, or furnishes services therefor, including programming,
engineering, repair or maintenance; or (2) offers training in the use, repair or
application of such equipment or products or any of them or provides consulting
services or advice in the use or application of such equipment or products, or
is in the data processing service business. If Landlord is prohibited from
lawfully performing the agreements set forth in this Section 22.01 by any law,
regulation, statute or court decision of any federal, state or other
governmental agency or authority or of any court, then Landlord shall not be
required to perform the agreements in this Section 22.01, and Landlord shall not
be deemed to be in default under this Lease for failure to perform or abide by
the agreements in this Section 22.01, nor shall Landlord be responsible or
liable to Tenant for any damages or otherwise. Tenant hereby indemnifies and
agrees to hold Landlord harmless from and against any and all loss, cost, damage
or expense (including, without limitation, all attorneys' fees and costs of
litigation) ever suffered or incurred by Landlord arising from, resulting from,
or i-n any manner connected with a claim or assertion by a third party that the
agreements of Landlord in this Section 22.01 are unlawful or unenforceable, or
both.
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Section 22.02. Inclusion of Restriction in Other Leases and Subleases.
-------------------------------------------------------
Landlord shall be bound by the foregoing prohibitions, but Landlord shall not be
obligated to include the foregoing prohibition in any tenant leases and
subleases covering space in the Building to which this Article is applicable.
Section 22.03. Advance Consultation with Tenant. Landlord shall consult
---------------------------------
with Tenant before refusing any prospective tenant, subtenant or assignee or
making any commitment which may violate this Article.
Section 22.04. Inapplicability. Notwithstanding the foregoing, this
----------------
Article shall not apply during any portion of the term of this Lease that
International Business Machines Corporation or any affiliate thereof is the
Landlord or a partner of Landlord or an affiliate of Landlord. This Article
shall also not apply to any lease entered into while International Business
Machines Corporation or any affiliate thereof is the Landlord or a partner of
Landlord. For purposes of this Article 22, an "affiliate" shall mean any Person
owning directly or indirectly more than 5% of the issued and outstanding stock
of, or more than a 5% beneficial interest in, the party in question. "Person"
shall mean an individual, partnership, corporation, trust, firm or other entity.
ARTICLE TWENTY-THREE
FIRST REFUSAL SALE
Section 23.01 Sale of the Building. (a) Landlord shall have the right from
---------------------
time to time to submit to Tenant one or more names of prospective purchasers or
transferees of an interest in the Building and/or Land and to request Tenant to
approve or reject the identity of such proposed purchaser or transferee. Tenant
agrees to respond to Landlord within five (5) business days after receipt of
such request from Landlord. In the event Tenant fails to so respond within such
five (5) business day period, Tenant shall be deemed to have approved the
identity of such prospective purchaser and/or transferee.
(b) If at any time after the execution of this Lease Landlord desires to
sell or transfer the Building and/or the Land or an interest therein Landlord
shall notify Tenant of the terms of sale or transfer which would be acceptable
to Landlord, and Tenant shall have the right to purchase such property for the
consideration and other terms stated in Landlord's notice. Tenant shall exercise
such right, if at all, within thirty (30) days after receipt of the notice from
Landlord given pursuant to this subsection (b). Should Tenant fail to exercise
this right, Landlord shall, upon the expiration of said thirty (30) day period
and subject to the right of Tenant to reject the purchaser or transferee and
purchase the property as provided in subsection (c) below, be thereafter free to
consummate a sale or transfer to any party for any consideration and upon any
terms, so long as such consideration shall be equal to or more than the
consideration set forth in Landlord's notice and the other terms of such sale or
transfer shall be no less favorable to Landlord.
(c) Prior to any such sale or transfer, if the identity of the prospective
purchaser or transferee has not previously been approved by Tenant, Landlord
shall notify Tenant of the identity of the purchaser or transferee, the amount
of the consideration and the other terms of the sale or transfer. Tenant shall
have five (5) business days after Tenant's receipt of the notice given by
Landlord under this subsection (c) to either approve or reject the identity of
such proposed purchaser or transferee. Whether Tenant approves or rejects the
proposed purchaser of transferee, if the consideration to be paid to Landlord
shall be less than the consideration set forth in the most recent notice given
by Landlord pursuant to subsection (b) above, or if the other terms of such sale
are less favorable to Landlord when compared to such notice, Tenant shall have
the right to purchase the property for the consideration and
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other terms stated in the Landlord's notice. Tenant must exercise such right, if
at all, within thirty (30) days after receipt of the notice from Landlord given
pursuant to this subsection (c). If Tenant approves the identity of the
prospective purchaser or transferee, and if the consideration to be paid to
Landlord shall be equal to or more than the consideration set forth in the
notice given by Landlord pursuant to subsection (b) above, and the other terms
of such sale or transfer are no less favorable to Landlord when compared to such
notice, Tenant shall have no right to acquire the property. If Tenant rejects
the proposed purchaser or transferee, and if the consideration to be paid to
Landlord shall be equal to or more than the consideration set forth in the most
recent notice given by Landlord pursuant to subsection (b) above, and the other
terms of such sale or transfer shall be no less favorable to Landlord than the
terms set forth in such most recent notice to Tenant under subsection (b) above,
Tenant shall have the right to purchase such property for the consideration and
other terms set forth in the notice given by Landlord to Tenant under this
subsection (c), provided that Tenant shall pay to Landlord, in cash at the
closing, in addition to the other consideration payable to Landlord, an amount
equal to one percent (1%) of the total consideration payable to Landlord from
such sale or transfer. Tenant shall exercise such right under the preceding
sentence, if at all, by giving Landlord written notice of such exercise within
ten (10) days after receipt of the notice from Landlord given pursuant to this
subsection (c). If Tenant shall fail to exercise such right, Landlord shall,
upon the expiration of such ten (10) day period, be thereafter free to
consummate such sale or transfer to such party.
(d) If any sale or transfer is not consummated by Landlord after following
the procedure set forth in this Article, the rights granted to Tenant in this
Article shall remain in effect. If Landlord shall sell or transfer such property
after a failure of Tenant to exercise its rights hereunder, such sale or
transfer shall be subject to the provisions of this Lease including, without
limitation, this right of first refusal.
Section 23.02. Changes in Landlord's Entity. Without limitation, this
----------------------------
restriction on the sale or transfer of the Building and/or the Land shall apply
with equal force to the sale, assignment or transfer, by operation of law or
otherwise, of the majority of stock or voting rights in Landlord's corporation,
or the change in the membership of Landlord's partnership as constituted as of
the date hereof, or one or more sales or transfers by operation of law or
otherwise, or creation of new stock by which an aggregate of more than 50% of
Landlord's stock shall be vested in a party or parties who are non-stockholders
as of the date hereof.
Section 23.03. Mortgagee Exemption. This Article shall not apply in the
--------------------
event of a sale or transfer of the Building and/or the Land or any interest
therein in connection with the foreclosure of any mortgage or deed to secure
debt covering the Building or Land or leasehold interest therein; provided,
however, that the restrictions contained in this Article shall bind the
Landlord's heirs, executors, distributees, representatives, successors, assigns,
transferees and grantees other than the first mortgagee, and any successor or
assignee, of the first mortgagee.
Sections 23.04. Other Exemptions. This Article 23 shall not apply to any
-----------------
transfer by Landlord during any period of time that International Business
Machines Corporation or any affiliate thereof is the Landlord or a partner of
Landlord; to any transfer by reason of the death of any person having an
interest in Landlord; to conveyances among parties having an interest in
Landlord on the date hereof or conveyances to the spouses or children of those
persons having an interest in Landlord; to a sale lease-back transaction or any
other financing arrangement whereby the Landlord or an affiliated party
continues to have an interest in the Building or Land; or to a sale or transfer
(which involves the transfer of title) as a part of any financing for the
Building, the Land or other improvements on the Land to an institutional lender;
or to a sale or transfer to a related or affiliated party. For the purposes of
this Article
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23, an "affiliate" shall mean a Person owning directly or indirectly more than
5% of the issued and outstanding stock of, or more than a 5% beneficial interest
in, the party in question. For purposes of this Article 23, a related or
affiliated party shall mean a Person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with
Landlord. The term "control," as used in the immediately preceding sentence,
means, with respect to a Person that is a corporation, the right to exercise,
directly or indirectly, fifty-one percent (51%) or more of the voting rights
attributable to the shares of the controlled corporation and, with respect to a
Person that is not a corporation, the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of the
controlled Person. "Person" shall mean individual, partnership, trust,
corporation, firm, or other entity.
ARTICLE TWENTY-FOUR
DEFAULT
Section 24.01. Default by Tenant. If Tenant shall default in the payment
------------------
of Annual Rent or Additional Rent and such default shall continue for fifteen
(15) days after notice thereof from Landlord or if Tenant shall default in the
performance of any of its other obligations under this Lease and if such default
shall continue for thirty (30) days after notice thereof from Landlord
specifying in what manner Tenant has defaulted (except that if such default
cannot be cured within said thirty (30) day period, this period shall be
extended for a reasonable additional time, provided that Tenant commences to
cure such default within the initial thirty (30) day period and proceeds
diligently thereafter to effect such cure) Landlord may (i) cure such default
and any costs and expenses incurred by Landlord therefor shall be deemed
Additional Rent payable on demand or (ii) enter the Leased Premises without
terminating the Lease and repossess the same and expel Tenant and those claiming
under Tenant, without being liable to prosecution or any claim for damages
therefor, and relet the Leased Premises as the agent of the Tenant, and receive
the rental therefor, and the Tenant shall pay the Landlord any deficiency that
may arise by reason of such reletting, on demand at any time and from time to
time at the office of Landlord, or (iii) terminate this Lease by written notice
at once or at any time thereafter so long as any default remains uncured, in
which event Tenant shall immediately surrender the Leased Premises to Landlord,
but if Tenant fails to do so, Landlord may, without further notice and without
prejudice to any other remedy Landlord may have for possession or arrearages in
rental or damages for breach of contract, enter upon the Leased Premises and
expel or remove Tenant and its personalty, without being liable to prosecution
or any claim for damages therefor; and Tenant agrees to indemnify Landlord for
all loss and damage which Landlord may suffer by reason of such Lease
termination, whether through inability to relet the Leased Premises, or through
decrease in rentals, or otherwise.
Ten (10) days of the resolution of such dispute. Tenant and Landlord shall
proceed diligently to resolve any such dispute by agreement or arbitration in
accordance with Article 38 or otherwise. Any amount determined to be payable
hereunder shall be paid together with interest from the date same was first due
hereunder at the rate set forth in Section 39.09 hereof.
Section 24.03. Default by Landlord. If Landlord defaults in the
--------------------
performance or observance of any provision of this Lease, Tenant shall give
Landlord notice specifying in what manner Landlord has defaulted and if such
default shall not be cured by Landlord within the period of time provided for
elsewhere in this Lease, and otherwise within thirty (30) days after the
delivery of such notice (except that if such default cannot be cured within said
thirty (30) day period, this period shall be extended for a reasonable
additional time, provided that Landlord commences to cure such default within
the thirty (30) day period and proceeds diligently thereafter to effect such
cure) Tenant may cure such default and
-37-
invoice Landlord for costs and expenses (including, without limitation,
reasonable attorneys' fees and court costs) incurred by Tenant therefor, and
Landlord shall reimburse Tenant within thirty (30) days following receipt of
such invoice and the data supporting the sum requested.
ARTICLE TWENTY-FIVE
HOLDOVER
If Tenant remains in the Leased Premises beyond the expiration or earlier
termination of the term of this Lease, such holding over in itself shall not
constitute renewal or extension of this Lease but in such event, a tenancy from
month to month shall arise at one and one-half times the then Annual Rent and
Additional Rent. if Tenant fails to surrender the Leased Premises and the Leased
Premises have been committed to another tenant upon the termination of this
Lease, then Tenant shall, in addition to any other liabilities to Landlord
accruing therefrom, indemnify and hold Landlord harmless from any loss and
liability resulting from claims made by such succeeding tenant founded on such
failure.
ARTICLE TWENTY-SIX
NOTICES
Section 26.01 Notices to Landlord or Tenant. Any notice, request,
-----------------------------
communication or demand under this Lease shall be in writing and shall be
considered properly delivered when addressed as hereinafter provided, given or
served personally or by registered or certified mail (return receipt requested)
and deposited in the United States general or branch post office or express
mail. Any notice, request, communication or demand by the Tenant to Landlord
shall be addressed to Landlord at Suite 1600, 0000 Xxxxx Xxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxx 00000, until otherwise directed in writing by Landlord and, if
requested in writing by Landlord, given or served simultaneously to Landlord's
first mortgagee at the address specified in such request. Any notice, request,
communication or demand by Landlord to Tenant shall be addressed to Tenant's
Administration Manager at the Leased Premises with copies addressed
simultaneously to Tenant, attention of the Division Counsel, Real Estate and
Construction Division, Xxxxxxxx 0, 0-X-00, 000 Xxxxxx Xxxxx, X. 0. Xxx 00000,
Xxxxxxxx, Xxxxxxxxxxx 00000-0000 and to the Regional Manager, IBM, Suite 400,
0000 Xxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000, until otherwise directed in
writing by Tenant. Rejection or other refusal to accept a notice, request,
communication or demand or the inability to deliver the same because of a
changed address of which no notice was given shall be deemed to be receipt of
the notice, request, communication or demand sent.
ARTICLE TWENTY-SEVEN
ASSIGNMENT AND SUBLETTING
Section 27.01. Assignment or Sublease to Subsidiary or Affiliate. Tenant
--------------------------------------------------
may assign this Lease or sublet all or any part of the Leased Premises at any
time during the term of this Lease, without the consent of Landlord, to a
subsidiary or affiliate of Tenant or an entity created by merger by Tenant and
another corporation.
Section 27.02. Assignment or Sublease to a Third Party. (a) Subject to
----------------------------------------
Section 27.01, if Tenant should desire to assign this Lease or sublet the Leased
Premises or any part thereof, Tenant shall give Landlord written notice (which
shall specify the proposed duration of said proposed sublease or
-38-
assignment) of such desire at least sixty (60) days in advance of the date on
which Tenant desires to make such assignment or sublease. Landlord shall have a
period of thirty (30) days following receipt of such notice within which to
notify Tenant in writing that Landlord elects either (i) to suspend this Lease
as to that portion of the space proposed to be subject to such assignment or
subletting as of the date and for the duration so specified by Tenant in its
notice, in which event Tenant will be relieved of all obligations hereunder as
to such space during said suspension (but after said suspension, the affected
portion of the Leased Premises shall be returned to Tenant in the condition that
existed immediately prior to such suspension, subject to normal wear and tear
and minor changes, alterations and additions, and Tenant shall once again become
fully liable as to the applicable space), or (ii) to terminate this Lease as to
that portion of the space proposed to be subject to such assignment or
subletting as of the date specified by Tenant in its notice, in which event all
rights and obligations of Tenant as to such space shall be terminated as of such
date, or (iii) to permit Tenant to assign this Lease or sublet such space for
the duration so specified by Tenant in its notice. If Landlord should fail to
notify Tenant in writing of such election within said thirty (30) day period,
Landlord shall be deemed to have elected option (iii) above. Each sublessee or
assignee shall fully observe all covenants of this Lease, including without
limitation, the provisions of Section 8.01 of this Lease, and no consent by
Landlord to an assignment or sublease shall be deemed in any manner to be a
consent to a use not permitted under Section 8.01. No assignment or subletting
shall relieve Tenant of any of Tenant's obligations under this Lease, and Tenant
shall remain fully liable for the faithful performance of all covenants, terms
and conditions hereof on the Tenant's part to be performed. Any attempted
assignment or sublease by Tenant in violation of the terms and covenants of this
Section 27.02 shall be void. Any consent by Landlord to a particular assignment
or sublease shall not constitute Landlord's consent to any other or subsequent
assignment or sublease, and any proposed sublease or assignment by a sublessee
or assignee of Tenant shall be subject to the provisions of this Section 27.02
as if it were a proposed sublease or assignment by Tenant. The prohibition
against an assignment or sublease described in this Section 27.02 shall be
deemed to include prohibition against Tenant's mortgaging its leasehold estate,
as well as against an assignment or sublease which may occur by operation of
law.
(b) The Landlord agrees that if the Tenant assigns this Lease and the
assignee defaults, any applicable notice required pursuant to the terms of this
Lease shall also be sent to the Tenant. If the assignee fails to cure such
default within the applicable grace period provided herein, Tenant shall have an
additional ten (10) days, in the case of monetary defaults, or thirty (30) days,
in the case of non-monetary defaults, in which to cure the assignee's default
and recover possession of the Leased Premises.
(c) No assignment of this Lease or subletting of the Leased Premises, or
any part thereof, shall be effective unless and until there shall have been
delivered to Landlord an agreement in recordable form, executed by Tenant and
the proposed assignee or subtenant, as the case may be, wherein and whereby any
assignee assumes due performance of this Lease to be done and performed for the
balance then remaining in the term of this Lease, and any subtenant acknowledges
the right of Landlord to continue or terminate any sublease, in Landlord's sole
discretion, upon termination of this Lease, and such subtenant agrees to
recognize and attorn to Landlord in the event that Landlord elects to continue
such sublease.
-39-
ARTICLE TWENTY-EIGHT
EQUAL EMPLOYMENT OPPORTUNITY
There are incorporated in this Lease the provisions of Executive Order
11246 (as amended) of the President of the United States on Equal Employment
Opportunities and the rules and regulations issued pursuant thereto with which
the Landlord represents that it will comply unless exempted.
ARTICLE TWENTY-NINE
QUIET ENJOYMENT
Landlord's Covenant of Quiet Enjoyment. Provided Tenant performs the
---------------------------------------
terms, conditions and covenants of this Lease, Landlord covenants and agrees to
take all necessary steps to secure and to maintain for the benefit of Tenant the
quiet and peaceful possession of the Leased Premises, the Common Building
Facilities and Building Parking Area for the term of this Lease, without
hindrance, claim or molestation by Landlord or any other person lawfully
claiming under Landlord.
ARTICLE THIRTY
NON-WAIVER
Non-Waiver by Either Party. (a) Failure by either party to complain of any
---------------------------
action, non-action or default of the other party shall not constitute a waiver
of the aggrieved party's rights hereunder. Waiver by either party of any right
for any default of the other party shall not constitute a waiver of any right
for either a subsequent default of the same obligation or for any other default,
past, present or future.
(b) The acceptance of possession of the Leased Premises by the Tenant shall
not be deemed a waiver of any of the obligations under this Lease to be
performed by Landlord.
ARTICLE THIRTY-ONE
PARTIAL INVALIDITY
Severability Clause. If any term, covenant or condition of this Lease, or
--------------------
the application thereof to any person or circumstance, shall ever be held to be
invalid or unenforceable, then in each such event the remainder of this Lease or
the application of such term, covenant or condition to any other person or any
other circumstance (other than those as to which it shall be invalid or
unenforceable) shall not be thereby affected, and each term, covenant, condition
and provision hereof shall remain valid and enforceable to the fullest extent
permitted by law.
ARTICLE THIRTY-TWO
RULES AND REGULATIONS
Section 32.01. Tenant's Obligation. Tenant shall abide by and observe the
--------------------
rules and regulations attached hereto as Exhibit H, as well as such other
reasonable rules and regulations as may be promulgated from time to time by
Landlord (hereinafter called Rules and Regulations) which Rules and Regulations
are necessary for the safety, reputation, care and appearance of the Building,
Building
-40-
Parking Area and Land, or the preservation of good order therein or the
operation and maintenance of the Building and Building Parking Area or equipment
therein.
Section 32.02. Standards Applicable to Landlord. Landlord shall (a) not
---------------------------------
discriminate against Tenant in enforcing the Rules and Regulations; and (b)
exercise its judgment in good faith in any instance when the exercise of
Landlord's judgment under the Rules and Regulations is required.
Section 32.03. Landlord's Enforcement. Landlord shall use its best efforts
-----------------------
to obtain compliance by all tenants and other occupants in the Building with the
Rules and Regulations, but Landlord may permit reasonable waivers with respect
to other parties so long as such waivers do not unreasonably interfere with or
materially and adversely affect Tenant in the conduct of its business in the
Leased Premises or violate any rights granted to Tenant under this Lease.
Section 32.04. Conflict. If there is a conflict or ambiguity created by
---------
the provisions of this Lease and the Rules and Regulations the provisions of
this Lease shall control and be binding on the parties.
ARTICLE THIRTY-THREE
ESTOPPEL CERTIFICATES
Section 33.01. Tenant's Estoppel Certificate. Tenant agrees, at any time
------------------------------
and from time to time, upon not less than fifteen (15) business days' prior
notice from Landlord, to execute, acknowledge and deliver to Landlord or
Landlord's mortgagee a statement in writing (1) certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that this Lease is in full force and effect as modified and stating the
modifications); (2) whether or not the term has commenced and if so stating the
dates to which the Annual Rent and Additional Rent hereunder have been paid by
Tenant; (3) stating whether or not Tenant has knowledge that Landlord is in
default in the performance of any covenant, agreement or condition contained in
this Lease, and if Tenant has knowledge of such a default, specifying each such
default; (4) stating the address to which notices to Tenant shall be sent; and
(5) stating such other matters as Landlord may reasonably request.
Section 33.02. Landlord's Estoppel Certificate. Prior to commencement of
--------------------------------
or during the term of this Lease Landlord shall, if requested by Tenant, deliver
an estoppel certificate to Tenant or a person designated by Tenant, in the
substance and form described in Section 33.01., relative to the status of this
Lease and/or any ground lease, underlying lease and/or mortgage encumbering the
Building, Building Parking Area or Land.
ARTICLE THIRTY-FOUR
EXAMINATION OF LEASE
The submission of this document for examination, negotiation and signature
does not constitute an offer to lease, or a reservation of or option for the
Leased Premises and this document shall not be binding and in effect until at
least one counterpart, duly executed by authorized persons of Landlord and
Tenant, has been delivered to each party hereto.
-41-
ARTICLE THIRTY-FIVE
COUNTERPARTS
This Lease has been executed in several counterparts, all of which
constitute one and the same instrument.
ARTICLE THIRTY-SIX
ANTENNA
Tenant's Right to Install Antenna. (a) Upon receipt of prior written
----------------------------------
approval of Landlord, which approval shall not be unreasonably withheld or
delayed, Tenant may install, and once installed modify, a microwave, satellite
or other antenna communications system in a location within Wildwood Office Park
designated by Landlord and reasonably approved by Tenant for use in connection
with Tenant's business in the Leased Premises. Tenant shall furnish detailed
plans and specifications for such system (or modification) to Landlord for its
approval, which approval shall not be unreasonably withheld or delayed. Upon
approval, such system shall be installed, at Tenant's expense (including the
expense of any approved alterations to the Building reasonably required by
Landlord as a result thereof), by a contractor selected in the manner agreed to
in Section 13.04. The antenna system shall include the use of a four (4) inch
sleeve at each telephone equipment room as required to bring Tenant's electrical
wiring from the location of such system to the Leased Premises. Tenant shall
have access to the location of such system and Tenant's equipment relating to
such system at all times throughout the term of this Lease. Tenant shall be
responsible for procuring whatever licenses or permits may be required for the
use of such system or operation of any equipment served thereby, and Landlord
makes no warranties whatsoever as to the permissibility of such a system under
applicable laws.
(b) Tenant agrees that Tenant's antenna system shall not constitute a
nuisance or unreasonably interfere with the operations of Landlord or other
tenants occupying the Building or Wildwood Office Park. Landlord agrees that it
will not permit the installation of an antenna on the roof of the Building by
any person or entity other than Tenant without Tenant's prior written approval,
which approval shall not be unreasonably withheld; provided that Tenant may
withhold such approval where the installation and/or operation of such other
antenna would interfere with the operation of Tenant's antenna system.
ARTICLE THIRTY-SEVEN
BROKER
The parties warrant and represent to each other that no broker,
commissioned agent, real estate agent or salesman has participated in the
negotiation of this Lease, its procurement or in the procurement of Landlord and
Tenant and that no such person, firm, corporation or other entity is or shall be
entitled to the payment of any fee, commission, compensation or other form of
remuneration in connection herewith in any manner. Tenant shall defend and save
harmless Landlord from and against any claim which may be asserted against
Landlord by any broker in connection with this transaction, and shall reimburse
Landlord for reasonable expenses, losses, costs and damages (including
attorneys' fees and court costs) incurred by Landlord in connection with such
claim, provided the claim arises out of conversations or dealings between Tenant
and such broker. Landlord shall defend and save harmless Tenant from and against
any claim which may be asserted against Tenant by any broker in connection with
this
-42-
transaction, and shall reimburse Tenant for reasonable expenses, losses, costs
and damages (including attorneys' fees and court costs) incurred by Tenant in
connection with such claim, or claim of any other broker, provided the claim
arises out of conversations or dealings between Landlord and such broker. This
Article shall survive the expiration or earlier termination of this Lease.
ARTICLE THIRTY-EIGHT
ARBITRATION
Section 38.01. Arbitration. (a) Whenever in this Lease it is provided that
------------
a dispute may be or shall be determined by arbitration, the arbitration shall be
conducted as provided in this Article. All proceedings shall be conducted
according to the Rules of The American Arbitration Association except as
hereinafter provided. No action at law or equity in connection with any such
disputes shall be brought until arbitration hereunder shall have been waived,
either expressly or pursuant to this Article.
(b) All disputes subject to arbitration in accordance with this Article
shall be raised by notice to the other party hereto, which notice shall state
with particularity the nature of the dispute and the demand for relief, making
specific reference by article number and title to the provisions of this Lease
alleged to give rise to the dispute. Such notice shall also refer to this
Article and shall state whether or not the party giving the notice demands
arbitration under this Article. If no such demand is contained in such notice,
the other party hereto against whom relief is sought shall have the right to
demand arbitration under this Article within five (5) business days after such
notice is received. Unless one of the parties thus demands arbitration, the
provisions of this Article shall be deemed to have been waived with respect to
the demand or dispute in question.
(c) Tenant and Landlord shall mutually and promptly select a person who has
had substantial experience in commercial real estate matters in the area of the
alleged dispute to act as arbitrator hereunder. If a selection is not made
within thirty (30) days after a demand for arbitration is made, the arbitrator
shall, upon the request of either party, be appointed by The American
Arbitration Association. The arbitration proceedings shall take place at a
mutually acceptable location in the City of Atlanta, Georgia.
(d) During any arbitration proceedings pursuant to this Article, the
parties hereto shall continue to perform and discharge all their respective
obligations under this Lease.
(e) In determining any controversy or dispute the arbitrator shall apply
the pertinent provisions of this Lease without departure therefrom in any
respect. The arbitrator shall not have the power to add to, modify or change any
of the provisions of this Lease, but this provision shall not prevent in any
appropriate case the interpretation, construction and determination by the
arbitrator of the applicable provisions of this Lease to the extent necessary in
applying the same to the matters to be determined by arbitration. The rights and
obligations of Landlord and Tenant to submit a dispute to arbitration is limited
to issues agreed in this Lease to be submitted to arbitration.
ARTICLE THIRTY-NINE
MISCELLANEOUS
Section 39.01. Lease Is Not Strictly Construed. This Lease shall be
--------------------------------
strictly construed neither against Landlord nor Tenant.
-43-
Section 39.02. No Exclusive Remedies. No remedy or election given by any
----------------------
provision in this Lease shall be deemed exclusive unless so indicated, but each
shall, wherever possible, be cumulative in addition to all other remedies in law
or equity which either party may have arising out of the default of the other
party and failure to cure such default within the applicable grace period.
Section 39.03. Intentionally Omitted.
----------------------
Section 39.04. Tenant's Rights to Deal with Its Own Contractors and
----------------------------------------------------
Suppliers. Except as otherwise specifically set forth in this Lease and subject
----------
to the Rules and Regulations, Landlord hereby covenants that Tenant may deal
with any person, firm or corporation for services, including food and vending
services, supplies, materials, labor, equipment, transportation, tools,
machinery and any other similar or dissimilar services or items in connection
with the use and occupation of the Leased Premises and any work performed by
Tenant therein.
Section 39.05. Governing Law. This Lease shall be governed in all respects
--------------
by the laws of the State in which the Building is located.
Section 39.06. Non-Disclosure of Lease. (a) Landlord shall keep the terms
------------------------
of this Lease in confidence at all times and shall not publish or disclose the
same except as permitted by Article 40.
(b) This Section shall not apply to disclosures that must be made by
Landlord to secure mortgage financing or in connection with a sale or transfer
of an interest in the Building or Land or in Landlord.
Section 39.07. Exculpation. Tenant shall look solely to Landlord's estate
------------
and interest in the Land and Building and the rentals therefrom for the
satisfaction of any right of Tenant for the collection of a judgment or other
judicial process or arbitration award requiring the payment of money by
Landlord, subject, however, to the prior rights of any mortgagee, and no other
property or assets of Landlord, Landlord's agents, incorporators, shareholders,
officers, directors, partners, principals (disclosed or undisclosed) or
affiliates shall be subject to levy, lien, execution, attachment, or other
enforcement procedure for the satisfaction of Tenant's rights and remedies under
or with respect to this Lease, the relationship of Landlord and Tenant hereunder
or under law, or Tenant's use and occupancy of the Leased Premises or any other
liability of Landlord to Tenant.
Section 39.08. Time of Essence. Time is of the essence of this Lease.
----------------
Whenever a certain day is provided for the payment of any sum of money or the
performance of any act or thing, the same enters into and becomes a part of the
consideration for this Lease.
Section 39.09. Late Charges. Any Annual Rent, Additional Rent and other
-------------
amounts payable to Landlord under this Lease shall incur interest at the rate of
twelve percent (12%) per annum from and after the due date for such payment, if
not paid, in the case of Annual Rent and of Additional Rent payable under
Section 3.04 hereof, within fifteen (15) days after notice from Landlord of the
non-payment thereof, and in the case of other Additional Rent and other amounts
due hereunder, within thirty (30) days after receipt by Tenant of invoices from
Landlord therefor. In no event shall the rate of interest payable on any late
payment exceed the legal limits for such interest enforceable under applicable
law.
-44-
Section 39.10. Attorney's Fees. In the event any action or proceeding is
---------------
commenced by Landlord or Tenant to enforce the terms and provisions of this
Lease, the non-prevailing party shall pay the reasonable attorney's fees and
court costs incurred by the other party.
ARTICLE FORTY
MEMORANDUM OF LEASE
This Lease shall not be recorded by either Landlord or Tenant. If requested
by Landlord or Tenant, the parties shall execute a memorandum of this Lease for
recording purposes in a form reasonable acceptable to Tenant and Landlord and
the requesting party shall pay all costs of recording.
ARTICLE FORTY-ONE
BINDING AGREEMENT
This Lease shall bind and inure to the benefit of the parties thereto and
their respective executors, distributees, heirs, representatives, successors and
permitted assigns.
ARTICLE FORTY-TWO
ENTIRE AGREEMENT
This Lease contains the entire agreement of the parties and may not be
modified except by an instrument in writing which is signed by both parties.
IN WITNESS WHEREOF, this Lease has been duly executed by the parties hereto
as of the day and year first above written.
LANDLORD:
WILDWOOD ASSOCIATES, a Georgia
general partnership
By: Cousins Properties Incorporated,
Managing General Partner
WITNESSES
/s/ R. Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------ -----------------------------------------
/s/ Xxxxxxxx X. Xxxxxxxx Title: Senior Vice President
------------------------
TENANT:
INTERNATIONAL BUSINESS MACHINES
CORPORATION
/s/ J. Wolfen By: /s/ X. X. Xxxxx, Xx.
------------------------ -----------------------------------------
/s/ Xxxxxxx X. Xxxx [sp] Title: IBM Vice President and President,
------------------------
Real Estate and Construction Division
-45-
SUPPLEMENTAL AGREEMENT
----------------------
To the Lease dated as of the 31st day of July, 1987, made by and between
WILDWOOD ASSOCIATES, as Landlord, and INTERNATIONAL BUSINESS MACHINES
CORPORATION, as Tenant.
By this Supplemental Agreement dated as of the 1st day of May, 1988, the
parties to the Lease agree as follows with respect to the Lease Premises located
at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx:
1. The improvements required to be constructed and finished by Landlord in
accordance with the terms of the Lease have been satisfactorily completed by
Landlord and accepted by Tenant, subject to latent defects.
2. The Lease Premises have been delivered to and accepted by Tenant.
3. The Rental Commencement Date of the Leased Premises is the 1st day of
January, 1988, and the expiration date is the 31st day of December, 2002,
subject, however, to the terms and provisions of the Lease. Tenant has
commenced to pay Annual Rent under the Lease as of May 1, 1988. Such initial
Annual Rent is calculated at the ______________________________ square foot for
the office space and ____________ feet for the Storage Area.
4. The Leased Premises contain 224,427 rentable square feet for office
space and 1,390 usable square feet of storage area on the basement level.
5. The Building consists of 618,540 rentable square feet.
6. The term "Tenant's Share" shall initially mean 36.28%.
IN WITNESS WHEREOF, this instrument has been duly executed by the parties
hereto as of the date set forth above.
Landlord:
WILDWOOD ASSOCIATES, a general partnership
By: Cousins Properties Incorporated,
Managing General Partner
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Senior Vice President
Tenant:
INTERNATIONAL BUSINESS MACHINES
CORPORATION
By: /s/ J.R. Mayo
-------------------------------
J. R. Mayo
Title: Manager of Business Analysis
Real Estate and Construction
-2-
FIRST AMENDMENT TO LEASE
------------------------
THIS FIRST AMENDMENT TO LEASE ("Amendment"), is made the 10th day of
November, 1987 between WILDWOOD ASSOCIATES, a Georgia general partnership
comprised of International Business Machines Corporation, a New York
corporation, and Cousins Properties Incorporated, a Georgia corporation, having
an office at Suite 1600, 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000,
hereinafter called "Landlord," and INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation, having its principal office at Xxxxxx, Xxx Xxxx 00000,
hereinafter called "Tenant."
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Landlord and Tenant entered into that certain Lease dated as of
July 31, 1987 (herein called the "Lease") with respect to the Leased Premises
(as defined in the Lease) located within the Building at 0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxx; and
WHEREAS, Landlord and Tenant desire to modify and amend the Lease as herein
provided.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
promises contained in this Amendment and other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged by the
parties hereto, Landlord and Tenant do hereby agree as follows:
1. All terms and words of art used herein, as indicated by the initial
capitalization thereof, shall have the same respective meaning designated for
such terms and of art in the Lease.
2. Notwithstanding anything contained in Section 22.01 of the Lease to the
contrary, Landlord shall not be deemed to be in default under the Lease for
failure to perform or abide by the agreements in Section 22.01, nor shall
Landlord be responsible or liable to Tenant for any damages or otherwise, as a
result of (a) the transfer or assignment of any lease in the Building (whether
with or without the consent of Landlord) in connection with a merger,
consolidation or reorganization of the tenant under such lease or in connection
with the transfer to a third party of corporate stock or partnership interests
of a tenant under such lease or in connection with the sale to a purchaser of
all or substantially all of the assets of a tenant under such lease, or (b) the
acquisition by a tenant of the Building of a business of the nature described in
clauses (1) and (2) of Section 22.01, whether such acquisition is of stock,
partnership interests, assets or otherwise.
3. Except as expressly modified herein, the Lease shall remain in full
force and effect and, as hereby modified, is expressly ratified and confirmed by
the parties hereto. This Amendment shall be binding upon and shall inure to the
benefit of Landlord and Tenant and their respective legal representatives,
successors and assigns.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed and their respective seals to be hereunto duly affixed as of the date and
year first above written.
Signed, sealed and "LANDLORD"
delivered in the presence of:
WILDWOOD ASSOCIATES, a
Georgia general partnership
/s/ Xxxx X. Xxxxx
-------------------------------
Unofficial Witness By: Cousins Properties,
Incorporated
/s/ Xxxxxxxxx Xxxxxx Managing General Partner
-------------------------------
Notary Public
By: /s/ Xxxxxx X. Xxxxx
----------------------------
My Commission Expires: Its: Senior Vice President
August 27, 1990
-------------------------------
[CORPORATE SEAL]
[NOTARIAL SEAL]
Signed, sealed and "TENANT"
delivered in the presence of:
INTERNATIONAL BUSINESS
MACHINES CORPORATION, a
/s/ J. Wolfen New York Corporation
-------------------------------
Unofficial Witness
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
/s/ Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxx, Xx.,
-------------------------------
Notary Public IBM Vice President and
President, Real Estate
My Commission Expires: and Construction Division
[CORPORATE SEAL]
/s/ March 3, 1992
-------------------------------
[NOTARIAL SEAL]
-4-
2300 BUILDING
WILDWOOD OFFICE PARK
SECOND AMENDMENT TO LEASE
-------------------------
THIS SECOND AMENDMENT TO LEASE ("Amendment"), is made as of this 30th day
of April, 1988 between WILDWOOD ASSOCIATES, a Georgia general partnership
comprised of International Business Machines Corporation, a New York
corporation, and Cousins Properties Incorporated, a Georgia corporation, having
an office at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxx 00000,
hereinafter called "Landlord," and INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation, having its principal office at Xxxxxx, Xxx Xxxx 00000,
hereinafter called "Tenant".
W I T N E S S E T H:
-------------------
WHEREAS, Wildwood Associates and Tenant entered into that certain Lease
dated as of July 31, 1987, as amended November 10, 1987 (herein called the
"Lease") located within the Building known as the 0000 Xxxxxxxx, Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxx, Xxxxxxx; and
WHEREAS, Tenant wishes to lease certain additional space on the basement
level of the Building and to correct certain space measurements in the Leased
Premises; and
WHEREAS, Landlord and Tenant desire to modify and amend the Lease as herein
provided.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
promises contained in this Amendment and other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged by the
parties hereto, Landlord and Tenant do hereby agree as follows:
1. All terms and words of art used herein, as indicated by the initial
capitalization thereof, shall have the same respective meaning designated for
such terms and words of art in the Lease.
2. Tenant hereby leases an additional 1,390 Useable Square Feet on the
basement level of the Building as shown in red on the floor plan of the basement
level attached as Exhibit "A" hereto and made a part hereof (hereinafter called
the "Storage Area").
3. The Annual Rental for the Storage Area shall be:
a. __________________________________________________________________
b. Thereafter the Annual Rental for the Storage Area shall be as follows:
Annual Rental per
Calendar Years Useable Square Feet Monthly Rent
-------------- ------------------- ------------
1989
1990
1991
1992
-5-
1993 - 1997
1998 - 2002
If Tenant exercises its right to extend this Lease after December 31, 2002,
Landlord and Tenant shall agree on a revised Annual Rental Rate for the Storage
Area during the extended term(s), but if no such Annual Rental Rate is agreed to
at least one month before the start of the Extended Term, then such extension
shall not apply to the Storage Area and Tenant shall vacate the Storage Area on
or before the expiration date of the Initial Term.
4. Tenant shall have the right to terminate its lease of the Storage
Area at any time upon six (6) months prior written notice to Landlord except
that if this Lease Agreement shall expire or terminate prior to the six month
notice provision, such other expiration or termination date shall prevail.
5. Any leasehold improvements for the Storage Area shall be at the sole
cost and expense of Tenant. All plans for such improvements are subject to
Landlord's prior written consent and all construction work by Tenant shall be in
accordance with the construction work rules set forth in this Lease Agreement.
6. Landlord agrees to provide water, if any, electricity for lights and
outlets to the Storage Area, but shall not provide any cleaning services to
Storage Area. Tenant covenants that it shall maintain the Storage Area at its
sole cost and expense in a clean, orderly, and sanitary condition and free of
insects, rodents, vermin and other pests. Tenant will not permit undue
accumulation of trash, rubbish and other refuse and will remove the same from
the Storage Area on a regular basis and will keep such refuse in proper
containers in the Storage Area until so removed from the Storage Area. Landlord
shall have the right to approve the cleaning and janitorial contractor, if any,
engaged by Tenant for the Storage Area, which approval shall not be unreasonably
withheld. Tenant covenants that it will not store any combustible, toxic or
dangerous materials in the Storage Area.
7. The Basic Lease Information, Leased Premises, on page 1 of the Lease
shall be deleted and the following paragraphs shall be inserted in lieu thereof:
-6-
Leased Premises: Approximately 224,427 rentable square feet as
more fully shown on Exhibit "J" attached hereto
and made a part hereof.
Tenant's Share: As of February 1, 1988, The Tenant's share of
operating expenses shall be 36.28% (224,427/
618,540).
8. Section 1.01(b) Lease of the Premises, on page 4 of the Lease, shall
----------------------
be deleted and the following paragraph shall be inserted in lieu thereof:
(b) The Leased Premises shall mean that certain floor area of the
Building containing approximately 224,427 rentable square feet as shown on
Exhibit "J" attached hereto and made a part hereof (i) together with such
additional space as Tenant may lease in the Building pursuant to any provisions
of the Lease (when added to the Leased Premises) (ii) less such space as may be
deleted from the Leased Premises pursuant to any provision of this Lease (when
so deleted). The floor plans for the Building (North and South Towers) are
attached hereto as Exhibit "A". The actual rentable area of the Building is
approximately 618,540 square feet which square footage has been determined as
set forth in section 4.02 (d). (For purposes of defining Leased Premises for the
payment of Annual Rent and Extended Rent pursuant to Sections 3.01 and 3.02 and
Operating Expenses pursuant to Section 3.04, the Storage Area shall be omitted).
9. Section 3.08(a), page 15, shall be amended by deleting in the fourth
line thereof the figure "614,543" and inserting in lieu thereof "618,540". In
addition, the following sentence shall be added at the end of such subsection:
"Effective February 1, 1988, the Tenant's Share shall equal 36.28%."
10. Exhibit "A," plans for the Basement area and the Second floor are
hereby deleted in their entirety and new plans for the Basement area and the
Second floor, showing the space occupied by Tenant in red, copies of which are
attached hereto, are inserted in lieu thereof.
11. Exhibit "E" is hereby deleted in its entirety and a new Exhibit "E," a
copy of which is attached hereto, is inserted in lieu thereof.
12. There shall be added to the Lease Exhibit "J," a schedule showing
Tenant's floor area in the Building, a copy of which is attached hereto and made
a part hereof.
13. Except as expressly modified herein, the Lease shall remain in full
force and effect and, as hereby modified, is expressly ratified and confirmed by
the parties hereto. This Amendment shall be binding upon and shall inure to the
benefit of Landlord and Tenant and their respective legal representatives,
successors and assigns.
-7-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed and their respective seals to be affixed as of the date and year first
above written.
Signed, sealed and "LANDLORD"
delivered in the presence of
the undersigned this 8th day WILDWOOD ASSOCIATES, a
of July, 1988. Georgia general partnership
/s/ Xxxxxxx Xxxxxxx By: Cousins Properties, Incorporated
--------------------------------
Unofficial Witness Managing General Partner
/s/ Xxx Xxxxxx
--------------------------------
Notary Public By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Its: Senior Vice President
My Commission Expires:
[CORPORATE SEAL]
May 9, 1992
--------------------------------
[NOTARIAL SEAL]
Signed, sealed and "TENANT"
delivered before the undersigned
this 30th day of June, 1988. INTERNATIONAL BUSINESS
MACHINES CORPORATION, a
New York Corporation
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Unofficial Witness
By: /s/ J. R. Mayo
------------------------------------
Its: Manager of Business Analysis
Real Estate and Construction
-8-
2300 BUILDING
WILDWOOD OFFICE PARK
THIRD AMENDMENT TO LEASE
------------------------
THIS THIRD AMENDMENT TO LEASE ("Amendment"), is made as of this 4th day of
August, 1989 between WILDWOOD ASSOCIATES, a Georgia general partnership
comprised of International Business Machines Corporation, a New York
corporation, and Cousins Properties Incorporated, a Georgia corporation, having
an office at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxx, 00000,
hereinafter called "Landlord", and INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation, having its principal office at Xxxxxx, Xxx Xxxx, 00000,
hereinafter called "Tenant".
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Wildwood Associates and Tenant entered into that certain Lease
dated as of July 31, 1987, as amended November 10, 1987 and April 30, 1988
(herein called the "Lease") located within the Building known as the 0000
Xxxxxxxx, Xxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx; and
WHEREAS, Tenant wishes to lease certain additional space in the Building;
and
WHEREAS, Landlord and Tenant desire to modify and amend the Lease as herein
provided.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
promises contained in this Amendment and other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged by the
parties hereto, Landlord and Tenant do hereby agree as follows:
1. All terms and words of art used herein, as indicated by the initial
capitalization thereof, shall have the same respective meaning
designated for such terms and words of art in the Lease.
2. Tenant hereby leases an additional 78,854 Rentable Square Feet of the
Building as shown in red on the floor plans attached as Exhibit "A-1"
hereto and made a part hereof (hereinafter called the "Expansion
Area"). The Expansion Area shall be included in the definition of
Leased Premises for all purposes of this Lease when such definition
would not be inconsistent with the specific reference to the Expansion
Area.
3. On the Rental Commencement Date of the Expansion Area, the initial
Base Rent Rate for the Expansion Area shall be the then current
applicable rate per square foot of Rentable Square Feet for the Leased
Premises.
4. The Basic Lease Information on page 1 of the Lease shall be modified
by deleting the following captions and inserting in lieu thereof:
Leased Premises: Approximately 303,281 rentable square feet as more
fully shown on Exhibit "J-1" attached hereto and
made a part hereof.
-9-
Tenant's Share: On the Rental Commencement Date for the Expansion
Area, the Tenant's share of Operating Expenses
shall be 49.03% (303,281 / 618,540).
Expansion Options: None
5. Section 1.01(b) Lease of the Premises, on page 4 of the Lease, shall
---------------------
be deleted and the following paragraph shall be inserted in lieu thereof:
"(b) The Leased Premises shall mean that certain floor area of the
Building containing approximately 303,281 Rentable Square Feet as
shown on Exhibit "J-1" attached hereto and made a part hereof (i)
together with such additional space as Tenant may lease in the
Building pursuant to any provisions of the Lease (when added to the
Leased Premises) (ii) less such space as may be deleted from the
Leased Premises pursuant to any provisions of the Lease (when so
deleted). The floor plans for the Building (North and South Towers)
are attached hereto as Exhibit "A". The actual rentable area of the
Building is approximately 618,540 square feet which square footage
has been determined as set forth in Section 4.02(d). (For purposes of
defining Leased Premises for the payment of Annual Rent and Extended
Rent pursuant to Sections 3.01 and 3.02 and operating Expenses
pursuant to Section 3.04, the Storage Area shall be omitted)."
6. Section 4.02 Rental Commencement Date, a new subparagraph (e) shall
------------------------
be added at the end thereof as follows:
"(e) As to the Expansion Area, the Rental Commencement Date, shall be the
earlier of (1) December 1, 1989 or (2) the date upon which the Tenant
takes possession and occupies the Expansion Area for business
purposes."
7. Section 4.06 Tenant Allowance, the following sentence shall be added:
----------------
"As to the Expansion Area, Landlord shall furnish Tenant with a one-
time allowance for construction of the leasehold improvements desired
by Tenant in the amount equal to the product of ______________ times
(y) the number of rentable square feet in the Expansion Area. All
costs and expenses of constructing and installing the improvements
desired by Tenant in the Expansion Area not included with or covered
by the Base Building Work or the Tenant Allowance for the Expansion
Area shall be the sole responsibility of Tenant. Construction of the
leasehold improvements in the Expansion Area shall be governed by the
terms and provisions of Exhibit "L" attached hereto and made a part
hereof."
8. Article 21, Option for Additional Space, this Article is deleted in
---------------------------
its entirety.
9. Concession to Tenant: As of the Rental Commencement Date of the
--------------------
Expansion Area, Landlord shall assume Tenant's obligations arising on
or after that date under that certain lease agreement between Tenant
and Cousins Properties Incorporated dated April 10, 1984 as amended
March 15, 1987, a copy of which has been delivered to Landlord.
Landlord and Tenant shall execute the Transfer and Assignment
Agreement attached hereto as Exhibit "K". Tenant covenants that it
will not amend or modify said lease agreement or take any actions
contrary to the terms of such lease agreement after the date hereof
which would increase the obligations of Landlord under such agreement
after the transfer date.
-10-
10. Attached as Exhibit "J" is a schedule showing Tenant's floor area in
the Building.
11. Except as expressly modified herein, the Lease shall remain in full
force and effect and, as hereby modified, is expressly ratified and
confirmed by the parties hereto. This Amendment shall be binding upon
and shall inure to the benefit of Landlord and Tenant and their
respective legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed and their respective seals to be affixed as of the date and year first
above written.
"LANDLORD"
WILDWOOD ASSOCIATES, a
Georgia general partnership
By: Cousins Properties Incorporated
Managing General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Its: Senior Vice President
-----------------------------------
[CORPORATE SEAL]
"TENANT"
INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation
By: /s/ X. X. Xxxxx Xx.
----------------------------------------
Its: VP-Real Estate and Construction
------------------------------------
[CORPORATE SEAL]
-11-
2300 BUILDING
WILDWOOD OFFICE PARK
FOURTH AMENDMENT TO LEASE
-------------------------
THIS FOURTH AMENDMENT TO LEASE ("Amendment"), is made as of this 10th day
of October, 1989 between WILDWOOD ASSOCIATES, a Georgia general partnership
comprised of International Business Machines Corporation, a New York
corporation, and Cousins Properties Incorporated, a Georgia corporation, having
an office at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxx 00000,
hereinafter called "Landlord", and INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation, having its principal office at Xxxxxx, Xxx Xxxx 00000,
hereinafter called "Tenant".
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Landlord and Tenant entered into that certain Lease dated as of
July 31, 1987, as amended November 10, 1987, April 30, 1988, and August 4, 1989
(herein called the "Lease") located within the Building known as the 0000
Xxxxxxxx, Xxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx; and
WHEREAS, Tenant wishes to lease certain additional space on the basement
level of the Building; and
WHEREAS, Landlord and Tenant desire to modify and amend the Lease as herein
provided.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
promises contained in this Amendment and other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged by the
parties hereto, Landlord and Tenant do hereby agree as follows:
12. All terms and words of art used herein, as indicated by the initial
capitalization thereof, shall have the same respective meaning
designated for such terms and words of art in the Lease.
13. Tenant hereby leases an additional 1,145 Useable Square Feet on the
basement level of the Building, comprising an Additional Storage Area
of 000 Xxxxxxx Xxxxxx Feet and a 000 Xxxxxxx Xxxxxx Foot Receiving
Office, as shown in red on the floor plan of the basement level
attached as Exhibit "A" hereto and made a part hereof (hereinafter
called the "Additional Storage Area and Receiving Office, where
applicable").
14. The Annual Rental for the Additional Storage Area shall be:
a. ____________________________________
b. Thereafter the Annual Rental for the Additional Storage Area shall
be as follows, payable in equal monthly installments in advance:
Annual Rental per
Calendar Years Useable Square Feet Monthly Rent
-------------- ------------------- ------------
1990
1991
-12-
1992
15. The Annual Rental for the Receiving Office shall be:
a. From November 1, 1989 through December 31, 1989, _______ per square
feet of useable area per year ________ payable in equal monthly
installments, in advance, _____________.
b. Thereafter, the Annual Rental for the Receiving Office shall be,
payable in equal monthly installments in advance:
Annual Rental per
Calendar Years Useable Square Feet Monthly Rent
-------------- ------------------- ------------
1990
1991
1992
16. The Rental Commencement Date for the Additional Storage Area and the
Receiving Office shall be November 1, 1989.
17. The term for the Additional Storage Area and Receiving office shall
commence November 1, 1989 and end on December 31, 1992; provided,
however, Tenant shall have the right to terminate its lease of the
Additional Storage Area and the Receiving Office at any time upon six
(6) months prior written notice to Landlord except that if this Lease
Agreement shall expire or terminate prior to the six month notice
provision, such other expiration or termination date shall prevail.
The Tenant shall have the right to extend the leased term for the
additional storage and receiving office beyond December 31, 1992 for a
term of up to ten (10) years at a negotiated and mutually agreeable
rental rate by giving the Landlord at least six (6) months notice of
its intention to extend.
18. Any leasehold improvements for the Additional Storage Area and/or the
Receiving Office shall be at the sole cost and expense of Tenant. All
plans for such improvements are subject to Landlord's prior written
consent and all construction work by Tenant shall be in accordance
with the construction work rules set forth in this Lease Agreement.
19. Landlord agrees to provide electricity for lights and outlets to the
Additional Storage Area and the Receiving Office, but shall not
provide any cleaning services to the Additional Storage Area or the
Receiving office. Tenant covenants that it shall maintain the
Additional Storage Area and the Receiving office at its sole cost and
expense in a clean, orderly, and sanitary condition and free of
insects, rodents, vermin and other pests. Tenant will not permit undue
"accumulation of trash, rubbish and other refuse and will remove the
same from the Additional Storage Area and the Receiving Office on a
regular basis and will keep such refuse in proper containers in the
Additional Storage Area and the Receiving office until so removed from
the Additional Storage Area and the Receiving Office. Landlord shall
have the right to approve the cleaning and janitorial contractor, if
any, engaged by Tenant for the Additional Storage Area and the
Receiving office, which approval shall not be unreasonably withheld.
Tenant covenants that it will not store any combustible, toxic or
dangerous materials in the Additional Storage Area or the Receiving
office.
-13-
20. Exhibit "A", the plan for the Basement area, is hereby deleted in its
entirety and a new Exhibit "A", plan for the Basement area, showing
the original storage area in green and the Additional Storage Area and
the Receiving office in red, a copy of which is attached hereto, is
inserted in lieu thereof.
21. Exhibit "J-1" is hereby deleted in its entirety and a new Exhibit "J-
1", a copy of which is attached hereto, is inserted in lieu thereof.
22. Except as expressly modified herein, the Lease shall remain in full
force and effect and, as hereby modified, is expressly ratified and
confirmed by the parties hereto. This Amendment shall be binding upon
and shall inure to the benefit of Landlord and Tenant and their
respective legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed and their respective seals to be affixed as of the date and year first
above written.
Signed, sealed and delivered before the "LANDLORD"
undersigned this 12th day of October, 1989.
WILDWOOD ASSOCIATES, a
/s/ X. Xxxxxx Georgia general partnership
---------------------------------------
Unofficial Witness
By: Cousins Properties Incorporated
Managing General Partner
/s/ Xxx Xxxxxx By:/s/ Xxxxxx X. Xxxxx
---------------------------------------- --------------------------------------------------
Notary Public Its: Senior Vice President
[CORPORATE SEAL]
My Commission Expires: May 9, 1992
[NOTARIAL SEAL]
Signed, sealed and delivered before the TENANT"
undersigned this 10th day of October, 1989.
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New
York corporation
/s/ Xxxxx X. Xxxx
----------------------------------------
Unofficial Witness By:/s/ B. R. Xxxxxxx
---------------------------------------------------
Its: Manager of Real Estate
Southeastern Region
/s/ Tally X. Xxxxxxx
----------------------------------------
Notary Public [CORPORATE SEAL]
My Commission Expires: July 31, 1993
[NOTARIAL SEAL]
-14-
2300 BUILDING
WILDWOOD OFFICE PARK
FIFTH AMENDMENT TO LEASE
------------------------
THIS FIFTH AMENDMENT TO LEASE ("Amendment"), is made as of this 7th day of
November, 1989 between WILDWOOD ASSOCIATES, a Georgia general partnership
comprised of International Business Machines Corporation, a New York
corporation, and Cousins Properties Incorporated, a Georgia corporation, having
an office at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxx 00000,
hereinafter called "Landlord", and INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation, having its principal office at Xxxxxx, Xxx Xxxx 00000,
hereinafter called "Tenant".
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Landlord and Tenant entered into that certain Lease dated as of
July 31, 1987, as amended November 10, 1987, April 30, 1988, August 4, 1989 and
October 10, 1989 (herein called the "Lease") located within the Building known
as the 0000 Xxxxxxxx, Xxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx; and
WHEREAS, Tenant wishes to lease certain additional space in the Building;
and
WHEREAS, Landlord and Tenant desire to modify and amend the Lease as herein
provided.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
promises contained in this Amendment and other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged by the
parties hereto, Landlord and Tenant do hereby agree as follows:
23. All terms and words of art used herein, as indicated by the initial
capitalization thereof, shall have the same respective meaning
designated for such terms and words of art in the Lease.
24. In the Third Amendment to Lease dated August 4, 1989, Tenant had
agreed to lease 2,773 rentable square feet on the fifth floor, South
Tower of the Building. Due to a reconfiguration of the uses needed by
Tenant in the Building, that 2,773 rentable square feet of space,
which as of the date hereof has not yet been improved, will be
relocated to the first floor, South Tower of the Building as more
fully shown on Exhibit "A" attached hereto and made a part hereof.
25. Tenant hereby leases 11,608 Rentable Square Feet on the fifth floor,
South Tower, of the Building, as shown in red on the floor plan
attached as Exhibit "B" hereto and made a part hereof (hereinafter
called the "Suite 575 Expansion Space"). The Suite 575 Expansion
Space shall be included in the definition of Leased Premises for all
purposes of this Lease when such definition would not be inconsistent
with the specific reference to the Suite 575 Expansion Space.
26. On the Rental Commencement Date of the Suite 575 Expansion Space, the
initial Base Rent Rate for the Suite 575 Expansion Space shall be:
Annual Base Rent Rate
Calendar Years Rentable Square Feet Monthly Rent
-------------- --------------------- ------------
1990
1991
1992
1993
1994
27. The term for the Suite 575 Expansion Space shall commence on the
Rental Commencement Date for the 575 Expansion Space and end on
December 31, 1994. The Tenant shall have the right to extend the
lease term for the Suite 575 Expansion Space beyond December 31, 1994
for a term up to December 31, 2002 at a negotiated and mutually
agreeable rental rate by giving the Landlord at least six (6) months
advance, written notice of its intention to extend. If Landlord and
Tenant cannot agree on a mutually acceptable rental rate within three
(3) months of Landlord's receipt of Tenant's notice of its intention
to extend, then such term shall not be extended and the term for the
Suite 575 Expansion Space shall end on December 31, 1994 or earlier if
the Lease has been earlier terminated pursuant to its terms.
28. The Basic Lease Information on page 1 of the Lease shall be modified
by deleting the following captions and inserting in lieu thereof:
Leased Premises: On the Rental Commencement Date for the Suite 575
Expansion Area, approximately 314,889 rental square
feet as more fully shown on Exhibit "J-1" attached
hereto and made a part hereof; provided, however,
the total rentable square feet shall be adjusted if
the Xxxxx 000 Xxxxxxxxx Xxxx term is not extended.
Tenant's Share: On the Rental Commencement Date for the Suite 575
Expansion Area, the Tenant's share of Operating
Expenses shall be 50.91% (314, 889 / 618,540);
provided, however the Operating Expenses percentage
shall be adjusted if the Xxxxx 000 Xxxxxxxxx Xxxx
term is not extended.
29. Section 1.01(b) Lease of the Premises, on page 4 of the Lease, shall
---------------------
be deleted and the following paragraph shall be inserted in lieu
thereof effective January 1, 1990:
"(b) The Leased Premises shall mean that certain floor area of the
Building containing approximately 314,889 Rentable Square Feet as
shown on Exhibit "J-1" attached hereto and made a part hereof (i)
together with such additional space as Tenant may lease in the
Building from time to time (when added to the Leased Premises) (ii)
less such space as may be deleted from the Leased Premises pursuant to
any provisions of the Lease (when so deleted). The floor plans for the
Building (North and South Towers) are attached as an Exhibit to this
Lease. The actual rentable area of the Building is approximately
618,540 square feet which square footage has been determined as set
forth in Section 4.02(d). (For purposes of defining Leased Premises
for the payment of Annual Rent and
-16-
Extended Rent pursuant to Sections 3.01 and 3.02 and Operating
Expenses pursuant to Section 3.04, the Storage Area shall be
omitted)."
30. Section 4.02 Rental Commencement Date, a new subparagraph (f) shall be
------------------------
added at the end thereof as follows:
"(f) As to the suite 575 Expansion Area, the Rental Commencement Date,
shall be the earlier of (1) January 1, 1990 or (2) the date upon which
the Tenant takes possession and occupies the Xxxxx 000 Xxxxxxxxx Xxxx
for business purposes."
31. Section 4.06 Tenant Allowance, the following sentence shall be added:
----------------
"As to the Xxxxx 000 Xxxxxxxxx Xxxx, Xxxxxxxx shall furnish Tenant
with a one time allowance for construction of the leasehold
improvements desired by Tenant in the amount equal to the product of
(x) fifteen dollars ($15.00) times (y) the number of rentable square
feet in the Suite 575 Expansion Area. All costs and expenses of
constructing and installing the improvements desired by Tenant in the
Expansion Area not included with or covered by the Base Building Work
or the Tenant Allowance for the Xxxxx 000 Xxxxxxxxx Xxxx shall be the
sole responsibility of Tenant. Construction of the leasehold
improvements in the Xxxxx 000 Xxxxxxxxx Xxxx shall be governed by the
terms and provisions of Exhibit "L" of the Lease, as attached hereto
for the Suite 575 Expansion Area."
32. Concession to Tenant: As to the Suite 575 Expansion Area only, Tenant
--------------------
shall not be required to pay any Base Rent or Additional Rent for the
first three (3) months of occupancy of such space.
33. Attached as Exhibit "J-1" is a schedule showing Tenant's floor area in
the Building.
34. Except as expressly modified herein, the Lease shall remain in full
force and effect and, as hereby modified, is expressly ratified and
confirmed by the parties hereto. This Amendment shall be binding upon
and shall inure to the benefit of Landlord and Tenant and their
respective legal representatives, successors and assigns.
-17-
IN WITNESS WHEREOF, the parties, hereto have caused this Amendment to be
signed and their respective seals to be affixed as of the date and year first
above written.
"LANDLORD"
WILDWOOD ASSOCIATES, a
Georgia general partnership
By: Cousins Properties Incorporated
Managing General Partner
By:/s/ Xxxxxx X. Xxxxx
------------------------------------
Its: Senior Vice President
[CORPORATE SEAL]
"TENANT"
INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation
By:/s/ B. R. Xxxxxxx
------------------------------------
Its: Manager of Real Estate
Southeastern Region
[CORPORATE SEAL]
-18-
2300 BUILDING
WILDWOOD OFFICE PARK
SIXTH AMENDMENT TO LEASE
------------------------
THIS SIXTH AMENDMENT TO LEASE ("Amendment"), is made as of this lst day of
December, 1989, between WILDWOOD ASSOCIATES, a. Georgia general partnership
comprised of International Business Machines Corporation, a New York
corporation, and Cousins Properties Incorporated, a Georgia corporation, having
an office at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxx 00000,
hereinafter called "Landlord", and INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation, having its principal office at Xxxxxx, Xxx Xxxx 00000,
hereinafter called "Tenant".
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Landlord and Tenant entered into that certain Lease dated as of
July 31, 1987, as amended November 10, 1987, April 30, 1988, August 4, 1989,
October 10, 1989, and November 7, 1989 (herein called the "Lease") located
within the Building known as the 0000 Xxxxxxxx, Xxxxxxxx xxxxxx Xxxx, Xxxxxxxx,
Xxxxxxx; and
WHEREAS, Landlord and Tenant desire to modify and amend the Lease as herein
provided.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
promises contained in this Amendment and other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged by the
parties hereto, Landlord and Tenant do hereby agree as follows:
1. All terms and words of art used herein, as indicated by the initial
capitalization thereof, shall have the same respective meaning designated
for such terms and words of art in the Lease.
2. Paragraph 9, Third Amendment to Lease dated August 4, 1989, shall be
deleted in its entirety and the following paragraph shall be inserted in
lieu thereof:
"9. Concession to Tenant: Commencing with the Rental Commencement Date of
--------------------
the Expansion Area, Landlord shall reimburse Tenant for its
obligations arising on or after that date under that certain lease
agreement between Tenant and Cousins Properties Incorporated dated
April 10, 1984, as amended March 15, 1987, a copy of which has been
delivered to Landlord. Tenant covenants that it will not amend or
modify said lease agreement or take any actions contrary to the terms
of such lease agreement after the date hereof which would increase the
obligations under said lease agreement."
3. Exhibit K of the Third Amendment to Lease dated August 4, 1989, shall be
deleted in its entirety.
4. Except as expressly modified herein, the Lease shall remain in full force
and effect and, as hereby modified, is expressly ratified and confirmed by
the parties hereto. This Amendment shall be binding upon and shall inure to
the benefit of Landlord and Tenant and their respective legal
representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed and their respective seals to be affixed as of the date and year first
above written.
"LANDLORD"
WILDWOOD ASSOCIATES, a
Georgia general partnership
By: Cousins Properties Incorporated
Managing General Partner
By:/s/ Xxxxxx X. Xxxxx
-----------------------------------
Its: Senior Vice President
---------------------
(Corporate Seal)
"TENANT"
INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York Corporation
By: /s/ B. R. Xxxxxxx
----------------------------------
Its: B. R. XXXXXXX
MANAGER Of REAL ESTATE
SOUTHEASTERN REGION
(Corporate Seal)
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2300 BUILDING
WILDWOOD OFFICE PARK
SEVENTH AMENDMENT TO LEASE
--------------------------
THIS SEVENTH AMENDMENT TO LEASE ("Amendment"), is made as of this 12th day
of March, 1990 between WILDWOOD ASSOCIATES, a Georgia general partnership
comprised of International Business Machines Corporation, a New York
corporation, and Cousins Properties Incorporated, a Georgia corporation, having
an office at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxx 00000,
hereinafter called "Landlord", and INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation, having its principal office at Xxxxxx, Xxx Xxxx 00000,
hereinafter called "Tenant".
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Landlord and Tenant entered into that certain Lease dated as of
July 31, 1987, as amended November 10, 1987, April 30, 1988, August 4, 1989,
October 10, 1989, November 7, 1989 and December 1, 1989 (herein called the
"Lease") located within the Building known as the 0000 Xxxxxxxx, Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxx, Xxxxxxx; and
WHEREAS, Tenant wishes to relocate certain space within the Building and to
lease certain additional space in the Building; and
WHEREAS, Landlord and Tenant desire to modify and amend the Lease as herein
provided.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
promises contained in this Amendment and other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged by the
parties hereto, Landlord and Tenant do hereby agree as follows:
1. All terms and words of art used herein, as indicated by the initial
capitalization thereof, shall have the same respective meaning designated
for such terms and words of art in the Lease.
2. In the Third Amendment to Lease dated August 4, 1989, Tenant had leased
2,773 Rentable Square Feet on the fifth floor, South Tower of the Building.
In the Fifth Amendment to Lease dated November 7, 1989 that space had been
relocated to the first floor, South Tower of the Building. Due to a
reconfiguration of the uses needed by Tenant in the Building, that 2,773
Rentable Square Feet of space, which as of the date hereof has not yet been
improved, will be relocated to the second floor, South Tower of the
Building as more fully shown on Exhibit "A" attached hereto and made a part
hereof.
3. In addition, Tenant hereby leases an additional 000 Xxxxxxxx Xxxxxx Feet on
the second floor, South Tower, of the Building, as shown in green on the
floor plan attached as Exhibit "A" hereto and made a part hereof
(hereinafter called the "Seventh Amendment Space"). The Seventh Amendment
Space shall be included in the definition of Leased Premises for all
purposes of this Lease when such definition would not be inconsistent with
the specific reference to the Seventh Amendment Space.
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4. On the Rental Commencement Date of the Seventh Amendment Space, the initial
Base Rent Rate for the Seventh Amendment Space shall be the same as the
then rental rate on the 2,773 Rentable Square Feet identified in paragraph
2 of this Amendment.
5. The term for the Seventh Amendment Space shall commence on the Rental
Commencement Date for the Seventh Amendment Space and end on the same date
as the 2,773 Rentable Square Feet identified in Paragraph 2 of this
Amendment.
6. The Basic Lease Information on page 1 of the Lease shall be modified by
deleting the following captions and inserting in lieu thereof:
Leased Premises: On the Rental Commencement Date for the Seventh Amendment
Space, approximately 315,044 rentable square feet as more
fully shown on Exhibit "J-1" attached hereto and made a
part hereof.
Tenant's Share: On the Rental Commencement Date for the Seventh Amendment
Space, the Tenant's share of Operating Expenses shall be
50.93% (315,044 618,540).
7. Section 1.01(b) Lease of the Premises, on page 4 of the Lease, shall be
----------------------
deleted and the following paragraph shall be inserted in lieu thereof
effective on the Rental Commencement Date of the Seventh Amendment Space:
"(b) The Leased Premises shall mean that certain floor area of the Building
containing approximately 315,044 Rentable Square Feet as shown on Exhibit
"J-1" attached hereto and made a part hereof (i) together with such
additional space as Tenant may lease in the Building from to time (when
added to the Leased Premises) (ii) less such space as may be deleted from
the Leased Premises pursuant to any provisions of the Lease (when so
deleted). The floor plans for the Building (North and South Towers) are
attached as an Exhibit to this Lease. The actual rentable area of the
Building is approximately 618,540 square feet which square footage has been
determined as set forth in Section 4.02(d). (For purposes of defining
Leased Premises for the payment of Annual Rent and Extended Rent pursuant
to Sections 3.01 and 3.02 and Operating Expenses pursuant to Section 3.04,
the Storage Area shall be omitted)."
8. Section 4.02 Rental Commencement Date, a new subparagraph (g) shall be
-------------------------
added at the end thereof as follows:
"(g) As to the Seventh Amendment Space, the Rental Commencement Date, shall
be the earlier of (1) April 1, 1990 or (2) the date upon which the
Tenant takes possession and occupies the Seventh Amendment Space for
business purposes."
9. Section 4.06 Tenant Allowance, the following sentence shall be added:
----------------
"As to the Seventh Amendment Space, Landlord shall furnish Tenant with a
one-time allowance for construction of the leasehold improvements desired
by Tenant in the amount equal to the product of
(__________________________) (y) the number of rentable square feet in the
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Xxxxxxx Xxxxxxxxx Space. All costs and expenses of constructing and
installing the improvements desired by Tenant in the Seventh Amendment
Space not included with or covered by the Base Building Work or the Tenant
Allowance for the Seventh Amendment Space shall be the sole responsibility
of Tenant. Construction of the leasehold improvements in the Seventh
Amendment Space shall be governed by the terms and provisions of Exhibit
"L" of the Lease."
10. Attached as Exhibit "J-1" is a schedule showing Tenant's floor area in
the Building.
11. Except as expressly modified herein, the Lease shall remain in full force
and effect and, as hereby modified, is expressly ratified and confirmed by
the parties hereto. This Amendment shall be binding upon and shall inure to
the benefit of Landlord and Tenant and their respective legal
representatives, successors and assigns.
-Signature Page to Follow-
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed and their respective seals to be affixed as of the date and year first
above written.
"LANDLORD"
WILDWOOD ASSOCIATES, a
Georgia general partnership
By: Cousins Properties Incorporated
Managing General Partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Its: Senior Vice President
---------------------
(Corporate Seal)
"TENANT"
INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation
By: /s/ B. R. Xxxxxxx
----------------------------------
Its: B. . Xxxxxxx
(Corporate Seal)
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