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EXHIBIT 10.16
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LEASE AGREEMENT
BETWEEN
ACQUIPORT PEACHTREE RIDGE, INC.,
a Delaware corporation
(Landlord)
AND
SYNQUEST, INC.,
a Georgia corporation
(Tenant)
0000 Xxxxxxx Xxxx
Xxxxx 000,
Xxxxxxxx, Xxxxxxx
(Premises)
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TABLE OF CONTENTS - LEASE AGREEMENT
PAGE
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1. Basic Lease Information 1
2. Premises and Term 1
3. Base Rent and Additional Rent 2
4. Use 2
5. Service and Utilities 3
6. Tenant Repairs 3
7. Alterations 3
8. Rules and Regulations 4
9. Inspection and Right of Entry 4
10. Surrender of Premises 4
11. Assignment and Subletting 4
12. Insurance 5
13. Fire and Casualty Damage 6
14. Waiver of Claims, Landlord's Liability and Indemnification 6
15. Condemnation 7
16. Holding Over 7
17. Quiet Enjoyment 7
18. Events of Default 7
19. Remedies 8
20. Bankruptcy 9
21. Intentionally Omitted 9
22. Subordination; Estoppel Certificates 10
23. Mechanics Liens; Other Taxes 10
24. Intentionally Omitted 10
25. Certain Rights Reserved to Landlord 10
26. Notices 11
27. Hazardous Substances 12
28. Brokerage 12
29. Miscellaneous 12
30. Additional Provisions 14
EXHIBITS
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Exhibit "A" Land
Exhibit "B" Premises
Exhibit "C" Work Letter
Exhibit "D" Rules and Regulations
Exhibit "E" Expansion Space
Exhibit "F" Building Floor Load
Exhibit "G" Payment of Operating Expenses
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease"), made and entered into by and
between ACQUIPORT PEACHTREE RIDGE, INC., a Delaware corporation (hereinafter
referred to as "Landlord"), and SYNQUEST, INC., a Georgia corporation
(hereinafter referred to as "Tenant").
W I T N E S S E T H :
1. BASIC LEASE INFORMATION. Each use of the terms capitalized and
defined in this Paragraph 1 shall be deemed to refer to, and shall have the
respective meanings set forth in, this Paragraph 1.
(a) Building. The seven (7) story concrete and pre-cast
office building located on the Land and being more commonly known as "3500
Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000."
(b) Land. Those certain parcels of land more particularly
described on Exhibit "A" attached hereto and by this reference made a part
hereof.
(c) Project. The Land and all improvements thereon,
including, without limitation, the Building and all Common Areas.
(d) Premises. That portion of the fifth floor of the
Building, presently known as Suite Number 555 thereof, substantially as shown on
Floor Plan(s) attached hereto as Exhibit "B" and by this reference made a part
hereof.
(e) Common Areas. Those certain areas and facilities of
the Building and the Project which are from time to time provided by Landlord,
for the use of tenants of the Project and their employees, clients, customers,
licensees and invitees or for use by the public, which facilities and
improvements shall, at a minimum, include all corridors, elevator foyers,
bathrooms, electrical and telephone rooms, mechanical rooms, and janitorial
areas, and any and all grounds, parks, landscaped areas, outside sitting areas,
sidewalks, walkways, pedestrian ways, loading docks, and which may in Landlord's
discretion, include generally all other improvements located on the Land and
designed for use in common by tenants, their employees, clients, customers,
licensees and invitees.
(f) Tenant's Permitted Uses. Executive and administrative
offices reasonable and customary for a first-class office building, but
specifically excluding medical and dental offices, governmental offices, travel
agency and airline ticket sales.
(g) Commencement Date. January 1, 2000.
(h) Lease Expiration Date. The last day of the calendar
month in which the day immediately preceding the sixth (6th) annual anniversary
of the Commencement Date occurs.
(i) Term. Approximately six (6) years, beginning on the
Commencement Date and ending at 11:59 p.m. on the Lease Expiration Date, unless
this Lease is sooner terminated as provided herein.
(j) Net Rentable Area of the Premises. Landlord and
Tenant have agreed that the Net Rentable Area of the Premises is 18,452 square
feet. Neither Landlord nor Tenant shall have the right to remeasure the Net
Rentable Area of the Premises during the Term of this Lease.
(k) Net Rentable Area of the Building. Landlord and
Tenant have agreed that the Net Rentable Area of the Building is 160,099 square
feet. Neither Landlord nor Tenant shall have the right to change the agreed Net
Rentable Area of the Building during the Term of this Lease.
(l) Intentionally Omitted.
(m) Rent. The Base Rent, the Additional Rent [as defined
in Paragraph 3(a)] and all other sums due from Tenant to Landlord hereunder.
(n) Base Rent. The Base Rent for the Premises shall be as
follows:
Per Square Foot Annual
Lease Year Net Rentable Area Total Monthly
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First (1st) $ 19.00 $ 350,588.00 $ 29,215.67
Second (2nd) $ 19.76 $ 364,611.52 $ 30,384.29
Third (3rd) $ 20.55 $ 379,188.60 $ 31,599.05
Fourth (4th) $ 21.37 $ 394,319.24 $ 32,859.94
Fifth (5th) $ 22.23 $ 410,187.96 $ 34,182.33
Sixth (6th) $ 23.12 $ 426,610.24 $ 35,550.85
The term "Lease Year" shall be each twelve (12) month period beginning on the
Commencement Date; provided, however, if the Commencement Date is not the first
day of the month, the first Lease Year shall commence on the Commencement Date
and end on the last day of the twelfth (12th) month thereafter and the second
and each succeeding Lease Year shall commence on the first day of the next
calendar month.
2. PREMISES AND TERM.
(a) In consideration of the obligation of Tenant to pay
Rent as herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases the Premises to Tenant, and
Tenant hereby leases the Premises from Landlord for the Term. During the Term,
Tenant shall have the right to use the Common Areas in common with others and in
accordance with the Rules and Regulations. Landlord and Tenant agree that the
number of square feet of Net Rentable Area of the Premises stated in Paragraph 1
above shall be used in the computation of Base Rent, Additional Rent, and all
other charges due hereunder, but Landlord and Tenant agree to enter into an
amendment to this Lease modifying the number of square feet of Net Rentable Area
of the Premises, the amount of the installments of Base Rent and other
provisions as appropriate, if Landlord or Tenant determines, after construction
of the Premises, that the number of square feet of Net Rentable Area contained
in the Premises is different than the number of square feet of Net Rentable Area
stated above. The Net Rentable Area of the Premises includes the area within the
space occupied by Tenant, together with a percentage of the area of all public
and common use areas within the Building.
(b) Tenant acknowledges that it currently is in
possession of approximately 11, 745 square feet of Net Rentable Area (the
"Existing Premises") within the Premises pursuant to a Temporary Holdover
Agreement between Landlord and Tenant (the "Temporary Holdover Agreement") and
that it has inspected and accepts the Existing Premises, the Building and the
Project, in their present condition, as suitable for the purpose for which the
Premises are currently leased, except for "Latent Defects"
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(as hereinafter defined) and "Punch List" (as hereinafter defined) items. Tenant
further acknowledges that no representations as to the repair of the Premises,
nor promises to alter, remodel or improve the Premises have been made by
Landlord, unless such are expressly set forth in this Lease. As provided in
Paragraph 2(c) below, Landlord is to construct "Leasehold Improvements" (as
hereinafter defined) to the Existing Premises and to the "Expansion Phase\" (as
hereinafter defined), after the Commencement Date. Upon "Substantial Completion"
(as defined in the Work Letter attached hereto as Exhibit "C") of the Leasehold
Improvements, Landlord's and Tenant's representatives shall do a walk-through
inspection of the Premises and create a list (the "Punch List") of defective,
nonconforming, damaged and otherwise non-acceptable portions of the Leasehold
Improvements. Tenant, by taking possession of the Premises or any portion
thereof after the Substantial Completion of the Leasehold Improvements,
acknowledges that it has inspected the Premises, and subject to those matters
set forth below in this Paragraph, thereby accepts the Premises and any such
improvements in their condition and for the use intended by Tenant, except for
Latent Defects and Punch List items. The taking of possession by Tenant or
acceptance of any portion of the Premises by Tenant after the Substantial
Completion of the Leasehold Improvements shall not be deemed as a waiver of: (i)
any Latent Defect in the Building or Premises; (ii) any Punch List item that
Landlord is to provide or perform; or (iii) any above-ceiling or other defect as
of the date of Substantial Completion of the Leasehold Improvements, not readily
visible during a walk-through inspection of the Premises, all of which items
described in (i) through (iii) Landlord shall be obligated to immediately repair
to the extent the condition requiring repair shall not be caused by Tenant. Any
such obligation of Landlord to make such repairs shall be made at Landlord's
expense. A "Latent Defect" is a defect in the condition of the Premises caused
by Landlord's, or Landlord's agents', failure to construct the Leasehold
Improvements in a good and workmanlike manner and in substantial accordance with
the Working Drawings and Specifications (as hereinafter defined), which defect
would not ordinarily be observed during a careful walk-through inspection by a
reasonable tenant. If Tenant notifies Landlord of a Latent Defect within twelve
(12) months after the Commencement Date, then Landlord, at its expense, will
repair such Latent Defect as soon as practicable. Except as set forth in this
Paragraph 2(d), Landlord shall have no liability or obligation to Tenant for
Latent Defects.
(c) This Lease pertains to Premises in which building
interior finish is to be constructed by Landlord in accordance with the Work
Letter attached hereto as Exhibit "C" ( the "Leasehold Improvements"). Tenant is
presently in occupancy of the Existing Premises under the Temporary Holdover
Agreement. Tenant acknowledges and agrees that the Leasehold Improvements will
be constructed in the Premises after the Commencement Date, and while Tenant is
in occupancy of the Existing Premises. Tenant agrees to cooperate with Landlord
to allow such construction to proceed in an orderly and expeditious manner. No
Base Rent shall be due and payable for the Expansion Phase (consisting of 6,707
square feet of Net Rentable Area in the aggregate, and located as shown on
Exhibit "B") until such time as the Leasehold Improvements reach Substantial
Completion. If Landlord is delayed in reaching Substantial Completion as a
result of "Tenant Delay" (as defined in Exhibit "C"), the date of Substantial
Completion, and the payment of Base Rent for the Expansion Phase, shall be
accelerated as provided in Exhibit "C"; and if Landlord cannot achieve
Substantial Completion as a result of Tenant Delay, Landlord may at its election
complete so much of the work to done by Landlord as may be practical under the
circumstances and by written notice to Tenant, establish the date for
commencement of payment of Base Rent on the Expansion Phase as the date of such
partial completion, subject to any applicable accelerations due to delays
resulting from Tenant Delay. Tenant shall begin paying Base Rent on the rest of
the Premises (excluding the Expansion Phase) on the Commencement Date
notwithstanding the fact that the Leasehold Improvements for such portion of the
Premises have not been started or completed as of such date. Tenant acknowledges
that no representations as to the repair of the Premises have been made by
Landlord, unless such are expressly set forth in this Lease. After the
completion of the Leasehold Improvements, including all Punch List items, Tenant
shall, upon demand, execute and deliver to Landlord a letter of acceptance of
delivery of the Premises which shall also set forth the Commencement Date and
the date payment of Rent on the Expansion Phase commences, shall confirm the
number of square feet Net Rentable Area of the Premises and shall contain such
other information as Landlord may reasonably request. In the event of any
dispute as to Substantial Completion of work performed or required to be
performed by Landlord, the certificate of Landlord's architect or general
contractor shall be conclusive.
(d) Landlord covenants and warrants that the Leasehold
Improvements shall be free from defects in workmanship and materials and
Landlord shall, at its own cost and expense, remedy any defect in the original
work, materials and equipment of Landlord herein provided, including without
limitation, plumbing, electrical, mechanical, air conditioning and ventilating
work, provided Tenant gives Landlord written notice thereof no later than twelve
(12) months after the date of Substantial Completion of the Leasehold
Improvements. In addition to (and not in lieu of) Landlord's obligations under
the Lease with respect to repairs, Landlord hereby agrees to use all reasonable
efforts to enforce the warranty of Landlord's contractor that the Leasehold
Improvements will be free from defects in workmanship and materials for a period
of one (1) year from the date of Substantial Completion. Alternatively, Landlord
hereby assigns to Tenant (and agrees to cooperate fully with Tenant in the
enforcement thereof) all of Landlord's rights pursuant to such warranty.
Landlord shall cooperate fully with Tenant to cause such defective workmanship
or material to be promptly corrected, repaired or replaced by Landlord's
contractor, without cost or expense to Tenant. Such correction, repair or
replacement shall be performed in such a manner so as to minimize interference
with Tenant's operations in or about the Premises.
3. BASE RENT AND ADDITIONAL RENT, Tenant shall pay to Landlord,
without notice, demand, offset or deduction, except as hereinafter expressly
provided, in lawful money of the United States of America, at Landlord's Address
for Payments as set forth in Paragraph 26 hereof, or at such other place as
Landlord shall designate in writing from time to time: (i) the Base Rent, in
equal monthly installments in advance on the first day of each calendar month
during the Term; (ii) the Additional Rent ("Additional Rent") consisting of all
other sums of money due and payable by Tenant hereunder, at the respective times
required hereunder. Except as provided above, payment of the Rent shall begin on
the Commencement Date; provided, however, that if either the Commencement Date
or the Lease Expiration Date falls on a date other than the first day of a
calendar month, the Rent due for such fractional month shall be prorated on a
per diem basis between Landlord and Tenant so as to charge Tenant only for the
portion of such fractional month falling within the Term.
4. USE.
(a) The Premises shall be used only for executive and
administrative offices, limited to the uses specifically set forth in the Basic
Lease Information and for no other purposes whatsoever. Landlord does, however,
represent that any certificate of occupancy issued with respect to the Premises
shall allow use for executive and administrative offices. Tenant shall at its
own cost and expense obtain any and all licenses and permits necessary for any
such use. Tenant shall comply with all governmental laws, ordinances and
regulations applicable to its use of the Premises, and shall promptly comply
with all governmental orders and directives for the correction, prevention and
abatement of nuisances by Tenant in or upon, or connected with, the Premises,
all at Tenant's sole expense. Tenant shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the
Premises, nor take any other action which would constitute a nuisance or would
disturb or endanger any other tenants of the Building or unreasonably interfere
with their use of their respective premises. Without Landlord's prior written
consent, Tenant shall not receive, store or otherwise handle any product,
material or merchandise which is explosive or highly flammable. Tenant will not
use the Premises for any purpose or in any manner (including without limitation
any method of storage) which would render the insurance thereon void or the
insurance risk more hazardous or cause the Insurance Commissioner or other
insurance authority to disallow any sprinkler credits. If any increase in the
fire and extended coverage insurance premiums paid by Landlord or other tenants
for the Building is caused by Tenant's use and occupancy of the Premises, or if
Tenant vacates the Premises and causes an increase in such premiums, then Tenant
shall pay the amount of such increase to Landlord as Additional Rent.
(b) Tenant agrees that the floor load resulting from
Tenant's furniture, inventory and equipment pertaining to Tenant's use of the
Premises shall not exceed allowable design floor loading for the Building as set
forth on Exhibit "F", which is attached hereto and by this reference made a part
hereof. Tenant shall distribute floor loading in accordance with design loads
for the
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Building. Tenant shall hold harmless Landlord from any loss, liability and
expenses, both real and alleged, arising out of or caused by Tenant's failure to
comply with this Paragraph.
5. SERVICES AND UTILITIES.
(a) Landlord shall maintain the Common Areas, including
lobbies, stairs, elevators, corridors and rest rooms, the windows in the
Building, the mechanical, plumbing and electrical equipment serving the
Building, and the structure itself, in good order and condition, except for
damage occasioned by the act of Tenant, its agents, servants, employees or
invitees, which damage shall be repaired by Landlord at Tenant's expense. In
addition, Landlord, at its own cost and expense, shall, during the Term of the
Lease: (i) subject to the limitation set forth in Paragraph 2(b) hereof, remedy
any Latent Defects in construction work; (ii) keep in good order and repair
during the Term of the Lease (and any extensions and renewals thereof) all
exterior portions of the Premises including, but without limitation, the roof,
walls, gutters, downspouts, interior roof drains or conductors, etc.; and (iii)
make any and all repairs to all concealed plumbing within the Premises
(including, without limitation, septic tanks, if any, and the sprinkler system),
as well as sewer, gas, electric and other utility lines up to but not within the
Premises unless such repairs are required by the negligent acts of Tenant, its
employees, agents or invitees. If Landlord fails to proceed promptly, taking in
to consideration the nature of such defect, to remedy any such defect to
Tenant's satisfaction after receipt of such notice from Tenant, the Tenant,
after not less than seven (7) days additional notice to Landlord (except that no
notice shall be required under emergency conditions or where Tenant's operations
shall be materially adversely affected) may, but shall not be obligated to,
remedy such defects. All sums expended by Tenant to cure such defects shall be
paid by the Landlord to Tenant upon demand with interest at the rate of eight
percent (8%) per annum from the date Tenant makes such payment(s). Without
limiting the generality of the foregoing covenants on the part of the Landlord
to remedy defects and without releasing the Landlord therefrom, any and all
guarantees and warranties given to the Landlord by a manufacturer, contractor or
subcontractor for any and all supplies, material, equipment (including
replacement equipment) or labor, whether related to the particular items
hereinbefore specified or not, shall inure to the benefit of the Tenant.
(b) Provided there does not exist any uncured Event of
Default hereunder, and subject to the provisions contained elsewhere herein and
in the Rules and Regulations, Landlord agrees to furnish to the Premises during
ordinary business hours of generally recognized "Business Days" (as hereinafter
defined), to be determined by Landlord (but exclusive in any event of Sundays
and legal holidays), heat and air conditioning required for the comfortable use
and occupancy of the Premises from 8:00 a.m. to 6:00 p.m. on weekdays and from
8:00 a.m. to 1:00 p.m. on Saturdays; janitorial services during the times and in
the manner that such services are customarily furnished in comparable office
buildings in the immediate market area, and elevator service. Landlord shall be
under no obligation to provide additional or after-hours heating or air
conditioning, but if Landlord elects to provide such services at Tenant's
request, Tenant shall pay to Landlord a charge for such services as set forth
below in Paragraph 38. Tenant agrees to keep and cause to be kept closed all
window coverings, if any, when necessary because of the sun's position, and
Tenant also agrees at all times to cooperate fully with Landlord and to abide by
all the regulations and requirements which Landlord may prescribe for the proper
functioning and protection of said heating, ventilating, and air conditioning
system and to comply with all laws, ordinances and regulations respecting the
conservation of energy. Whenever heat-generating machines, beyond those
customarily used for office purposes, excess lighting or equipment are used in
the Premises which materially affect the temperature otherwise maintained by the
air conditioning system, Landlord shall notify Tenant thereof and within thirty
(30) days after such notice, Tenant shall elect to: (i) discontinue use of such
equipment, machine or lighting; (ii) pay to Landlord as Additional Rent an
agreed upon fee per hour during the periods that Tenant uses such equipment,
machine or lighting; or (iii) cause Landlord to install supplementary air
conditioning units and metering devices for such units in the Premises; and the
cost thereof, including the cost of electricity and/or water therefor, shall be
paid by Tenant to Landlord within ten (10) days after written demand by
Landlord. Landlord agrees to furnish to the Premises electricity for general
office purposes, meeting the requirements set forth in the Work Letter, and
water for lavatory and drinking purposes, subject to the provisions of
subparagraph 5(c) below. Except as provided in Paragraph 39 below, Landlord
shall in no event be liable for any interruption or failure of utility services
to the Premises or for any result thereof.
(c) If Tenant shall require water or electric current or
any other resource materially in excess of that usually furnished or supplied
for use of the Premises as general office space (it being understood that such
an excess may result from the number of fixtures, apparatus and devices in use,
the nature of such fixtures, apparatus and devices, the hours of use, or any
combination of such factors), Landlord shall notify Tenant thereof and, within
thirty (30) days after receipt of such notice, Tenant shall elect to: (i)
discontinue use of such equipment, machine or lighting; (ii) pay to Landlord as
Additional Rent an agreed upon fee per hour during the periods that Tenant uses
such equipment, machine or lighting; or (iii) cause Landlord to install a
special meter in the Premises so as to measure the amount of water, electric
current or other resource consumed solely for any such other use. The cost of
any such meters and installation, maintenance and repair thereof shall be paid
for by Tenant, and Tenant agrees to pay Landlord promptly upon demand by
Landlord for all such water, electric current or other resource consumed, as
shown by said meters, at the rates charged to Landlord by the local public
utility furnishing the same. Landlord shall not be in default hereunder or be
liable for any damages directly or indirectly resulting from, nor shall the
rental herein reserved be abated by reason of: (i) the installation, use or
interruption of use of any equipment in connection with the furnishing of any of
the foregoing utilities and services; (ii) failure to furnish or delay in
furnishing any such utilities or services when such failure or delay is caused
by Acts of God or the elements, labor disturbances of any character, any other
accidents or other conditions beyond the reasonable control of Landlord; or
(iii) the limitation, curtailment, rationing or restriction on use of water or
electricity, gas or any other form of energy or any other service or utility
whatsoever serving the Premises or the Building. Furthermore, Landlord shall be
entitled to cooperate voluntarily in a reasonable manner with the efforts of
national, state or local governmental agencies or utilities suppliers in
reducing consumption of energy, water or any other resources.
(d) Any sums payable under this Paragraph 5 shall be
considered Additional Rent and may be added to any installment of Rent
thereafter becoming due and shall accrue late charges as Rent as set forth in
subparagraph 19(g) of this Lease, and Landlord shall have the same remedies for
a default in payment of such sums as for a default in the payment of Rent.
(e) Tenant shall not provide any janitorial services
without Landlord's prior written consent and then only subject to supervision of
Landlord and by a janitorial contractor or employees at all times satisfactory
to Landlord. Any such services provided by Tenant shall be at Tenant's sole
risk, cost and responsibility.
6. TENANT REPAIRS. Tenant shall, at all times during the Term, at
Tenant's sole cost and expense, keep the Premises and every part thereof in good
order, condition and repair, excepting ordinary wear and tear, damage thereto by
fire, earthquake, Act of God, the elements, or the negligence or intentional
misconduct of Landlord or its agents, servants, employees or invitees (other
than the Tenant). Tenant shall, on or before the Lease Expiration Date or any
sooner date of termination of this Lease, unless Landlord demands otherwise as
in Paragraph 7 hereof provided, surrender to Landlord the Premises and all
repairs, changes, alterations, additions and improvements thereto in the same
condition as when received, or when first installed, ordinary wear and tear,
damage by fire, earthquake, Act of God or the elements excepted. It is hereby
understood and agreed that, except as expressly set forth herein, Landlord has
no obligation to alter, remodel, improve, repair, decorate, or paint the
Premises or any part thereof. However, if Tenant fails to make required repairs
to the Premises promptly, Landlord, at Landlord's election, after not less than
then ten (10) days prior written notice to Tenant, shall have the right to make
such repairs, and Tenant shall pay Landlord on demand Landlord's actual costs of
such repair, plus a fee equal to fifteen percent (15%) of such actual costs to
cover Landlord's overhead in making such repairs.
7. ALTERATIONS. Tenant shall not make any alterations, additions
or improvements to the Premises (including but not limited to roof, floor and
wall penetrations) without the prior written consent of Landlord. In the event
Landlord consents to the making of any such alterations, additions or
improvements by Tenant, the same shall be made by Tenant, at Tenant's sole cost
and expense, in accordance with all applicable laws, ordinances and regulations,
and all requirements of Landlord's and Tenant's insurance policies and only in
accordance with plans and specifications approved by Landlord; and any
contractor or person selected by Tenant to make the
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same and all subcontractors must first be approved in writing by Landlord. If
Landlord and Tenant so agree, the alterations, additions or improvements may be
made by Landlord for Tenant's account and, in such event, Tenant shall fully
reimburse Landlord for the entire cost thereof, including a fee of fifteen
percent (15%) of such cost to cover Landlord's overhead, within twenty (20) days
after written notification of Tenant by Landlord providing Tenant with an
invoice or other request (or statement). Promptly after completion of any
alterations, additions, or improvements to the Premises made by Tenant, Tenant
shall supply Landlord with a set of scaled and dimensioned, reproducible mylars
of "as-built" plans for such alterations, additions or improvements, certified
by Tenant's architect or space planner. Tenant may, without the consent of
Landlord, but at its own cost and expense and in a good and workmanlike manner
erect such shelves, bins, machinery and trade fixtures as it may deem advisable,
without altering the basic character of the Building or improvements and without
overloading or damaging the Building or improvements, and in each case complying
with all applicable governmental laws, ordinances, regulations and other
requirements. All alterations, additions, improvements and partitions erected by
Tenant shall be and remain the property of Tenant during the Term and Tenant
shall, unless Landlord otherwise elects as herein provided, remove all
alterations, additions, improvements and partitions erected by Tenant and
restore the Premises to their condition, as existed after completion of the
Leasehold Improvements, normal wear and tear, casualty and condemnation
excepted, on or before the Lease Expiration Date or any sooner date of
termination of this Lease; provided, however, that if Landlord so elects prior
to termination or expiration of this Lease, such alterations, additions,
improvements and partitions shall become the property of Landlord as of the
Lease Expiration Date or any sooner date of termination of this Lease and shall
be delivered up to the Landlord with the Premises. All shelves, bins, machinery
and trade fixtures installed by Tenant may be removed by Tenant prior to the
termination of this Lease if Tenant so elects, and shall be removed on or before
the Lease Expiration Date or any sooner date of termination of this Lease if
required by Landlord; upon any such removal Tenant shall restore the Premises to
their original condition. All such removals and restoration shall be
accomplished in a good and workmanlike manner so as not to damage the primary
structure or structural qualities of the Building and improvements situated in
the Premises. Tenant shall not be required to remove any of the Leasehold
Improvements constructed pursuant to the Work Letter attached hereto as Exhibit
"C." In addition, Tenant shall not be required to remove any subsequent
alteration or improvement made by Tenant, provided Tenant obtains Landlord's
written consent to surrender such alteration or improvement with the Premises,
at the time Landlord consents to the making of such alteration or improvement.
8. RULES AND REGULATIONS. Tenant shall faithfully observe and
comply with the Rules and Regulations attached to this Lease as Exhibit "D" and
by this reference made a part hereof and all reasonable modifications thereof
and additions thereto from time to time put into effect by Landlord. For
purposes of the Rules and Regulations set forth in Exhibit "D" of the Lease,
Landlord hereby: (i) represents that such Rules and Regulations, with such minor
modifications as may have been negotiated between Landlord and such other
tenants, constitute the building rules and regulations for all of the tenants of
the Building; (ii) agrees that the Rules and Regulations will be enforced in a
non-discriminatory manner, and (iii) agrees that Landlord will use its
reasonable good faith efforts to effect compliance therewith. In the event of
any conflict with the terms of the Lease, the terms and conditions of the Lease
shall prevail over the Rules and Regulations. Notwithstanding anything to the
contrary contained in the Lease, the Rules and Regulations will not be modified
or amended so as to effect a material expansion of Tenant's obligations under
the Lease. Landlord shall not be responsible for the non-performance by any
other tenant or occupant of the Building of any of said Rules and Regulations.
9. INSPECTION AND RIGHT OF ENTRY. Landlord reserves and shall at
all times have the right to enter the Premises to inspect the same, to supply
janitorial service and any other service to be provided by Landlord to Tenant
hereunder, to show said Premises to prospective purchasers, mortgagees or
tenants, to post and maintain all notices, including notices of
non-responsibility, and to alter, improve, or repair the Premises in accordance
with the terms of this Lease, without abatement of Rent, and may for that
purpose erect, use and maintain scaffolding, pipes, conduits, and other
necessary structures in and through the Premises where reasonably required by
the character of the work to be performed, provided that entrance to the
Premises shall not be blocked thereby, and further provided that the business of
Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim
for damages for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises. For each of
the aforesaid purposes, Landlord shall at all times have and retain a key with
which to unlock all of the doors in, upon and about the Premises, excluding
Tenant's vaults and safes, or special security areas (designated in writing in
advance and made known to Landlord), and Landlord shall have the right to use
any and all means which Landlord may deem necessary or proper to open said doors
in an emergency, in order to obtain entry to any portion of the Premises, and
any entry to the Premises, or portions thereof obtained by Landlord by any of
said means, or otherwise, shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into the Premises, or an eviction,
actual or constructive, of Tenant from the Premises or any portions thereof.
Landlord shall also have the right at any time, without the same constituting an
actual or constructive eviction and without incurring any liability to Tenant
therefor, to change the arrangement and/or location of entrances or passageways,
doors and doorways and corridors, elevators, stairs, toilets or other public
parts of the Building and to change the name, number or designation by which the
Building is commonly known.
10. SURRENDER OF PREMISES. Tenant shall give written notice to
Landlord at least thirty (30) days prior to vacating the Premises and shall
arrange to meet with Landlord for a joint inspection of the Premises prior to
vacating.
11. ASSIGNMENT AND SUBLETTING.
(a) Except as otherwise expressly provided in Paragraphs
40 and 41, neither Tenant nor its legal representatives or successors in
interest shall, by operation of law or otherwise, assign or otherwise transfer
this Lease or any part hereof, or the interest of Tenant under this Lease, and
the Premises or any part thereof shall never be sublet, occupied or used for any
purpose by anyone other than Tenant, without Tenant's obtaining in each instance
the prior written consent of Landlord in the manner hereinafter provided. Tenant
shall not modify, extend, or amend a sublease previously consented to by
Landlord without obtaining Landlord's prior written consent thereto. Tenant
shall not mortgage, pledge or otherwise encumber its interest under this Lease
without the prior written consent of Landlord, which consent may be withheld for
any reason or no reason, in the sole and absolute discretion of Landlord. All
renewal or extension rights, expansion rights, termination rights, exclusive
rights, opportunity rights and other such rights and options contained in this
Lease shall be personal to the original Tenant executing this Lease and shall
terminate upon any assignment or sublease affecting all or any portion of the
Premises.
(b) An assignment of this Lease shall be deemed to have
occurred: (i) if in a single transaction or in a series of transactions more
than a fifty percent (50%) interest in Tenant, any guarantor of this Lease, or
any subtenant (whether stock, partnership interest, interest in a limited
liability company or otherwise) is transferred, diluted, reduced, or otherwise
affected with the result that the present holder or owners of Tenant, such
guarantor, or such subtenant have less than a fifty percent (50%) interest in
Tenant, such guarantor or such subtenant or (ii) if Tenant's obligations under
this Lease are taken over or assumed in consideration of Tenant leasing space in
another office building. The transfer of the outstanding capital stock of any
corporate Tenant, guarantor or subtenant through the "over-the-counter" market
or any recognized national securities exchange [other than by persons owning
five percent (5%) or more of the voting stock of such corporation] shall not be
included in the calculation of such fifty percent (50%) interest in (i) above.
(c) If Tenant should desire to assign this Lease or
sublet the Premises (or any part thereof) and, there does not then exist any
uncured Event of Default, Tenant shall give Landlord written notice no later
than twenty-five (25) days in advance of the proposed effective date of any
proposed assignment or sublease, specifying (i) the name and business of the
proposed assignee or sublessee, (ii) the amount and location of the space within
the Premises proposed to be so subleased, (iii) the proposed effective date and
duration of the assignment or subletting, (iv) the proposed rent or
consideration to be paid to Tenant by such assignee or sublessee, (v) the
proposed use of the proposed assignee or sublessee, and (vi) a true and correct
copy of the proposed instrument of assignment or proposed sublease. In the event
that Landlord agrees to consent to any assignment or sublease, such consent
shall be evidenced by the
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execution of Landlord's standard form of consent to assignment or consent to
sublease by Tenant, the assignee or sublessee and Landlord. Landlord shall not
execute such consent until it has received a true and correct copy of the
fully-executed instrument of assignment or sublease and an original consent
executed by Tenant and the assignee or sublessee. Tenant shall promptly supply
Landlord with financial statements and such other information as Landlord may
request to evaluate the proposed assignment or sublease. Landlord shall have a
period of twenty-five (25) days following receipt of such notice and other
information requested by Landlord within which to notify Tenant in writing that
Landlord elects: (A) to terminate this Lease as to the space so affected as of
the proposed effective date set forth in Tenant's notice, in which event Tenant
shall be relieved of all further obligations hereunder as to such space, except
for provisions of this Lease which expressly survive the termination hereof; or
(B) to permit Tenant to assign or sublet such space; provided, however, that, if
the rent rate agreed upon between Tenant and its proposed subtenant is greater
than the rent rate that Tenant must pay Landlord hereunder for that portion of
the Premises, or if any consideration shall be promised to or received by Tenant
in connection with such proposed assignment or sublease (in addition to rent),
then all of such excess rent and other consideration shall be considered
Additional Rent owed by Tenant to Landlord (less brokerage commissions,
attorneys' fees and other disbursements reasonably incurred by Tenant for such
assignment and subletting if acceptable evidence of such disbursements is
delivered to Landlord), and shall be paid by Tenant to Landlord, in the case of
excess rent, in the same manner that Tenant pays Base Rent and, in the case of
any other consideration, within ten (10) business days after receipt thereof by
Tenant; or (C) to refuse to consent to Tenant's assignment or subleasing of such
space and to continue this Lease in full force and effect as to the entire
Premises. If Landlord should fail to notify Tenant in writing of such election
within the aforesaid twenty-five (25) day period, Landlord shall be deemed to
have elected option (C) above. If Landlord elects to terminate this Lease as to
the affected space as permitted in clause (A) above, Tenant may, by written
notice to Landlord given within ten (10) days after receipt of notice from
Landlord of Landlord's election to exercise such right, withdraw its request to
sublease such space and thereby nullify Landlord's exercise of its option to
terminate the Lease as to such space. If Landlord elects to terminate this Lease
as to the affected space pursuant to Landlord's option set forth in clause (A)
above, then this Lease shall terminate as to the affected space on the date set
forth in Landlord's notice to Tenant, which date shall be no less than thirty
(30) days and no more than ninety (90) days after the date of such notice. If
the affected space does not constitute the entire Premises and Landlord
exercises its option to terminate this Lease with respect to the affected space,
as to that portion of the Premises which is not part of the affected space, this
Lease shall remain in full force and effect except that Tenant's Base Rent and
Additional Rent shall be calculated on the basis of the Net Rentable Area of the
Premises remaining after the exclusion of the affected space. Landlord shall
bear its own costs, if any, of physically severing the affected space from the
balance of the Premises. Whether or not Landlord grants its consent, Tenant
shall reimburse Landlord, within thirty (30) days after written request
therefor, for all reasonable legal, architectural and engineering fees and any
other reasonable costs incurred by Landlord in connection with any request by
Tenant for approval of an assignment or subletting and such payment shall not be
deducted from the Additional Rent owed to Landlord pursuant to subsection (B)
above. Tenant shall deliver to Landlord copies of all documents executed in
connection with any permitted assignment or subletting, which documents shall be
in form and substance reasonably satisfactory to Landlord and which shall
require any assignee to assume performance of all terms of this Lease on
Tenant's part to be performed. No acceptance by Landlord of any Rent or any
other sum of money from any assignee, sublessee or other category of transferee
shall be deemed to constitute Landlord's consent to any assignment, sublease, or
transfer.
(d) Any attempted assignment or sublease by Tenant in
violation of the terms and provisions of this Paragraph 11 shall be void and
such act shall constitute a material breach of this Lease. In no event shall any
assignment, subletting or transfer, whether or not with Landlord's consent,
relieve Tenant of its primary liability under this Lease for the entire Term,
and Tenant shall in no way be released from the full and complete performance of
all the terms hereof. If Landlord takes possession of the Premises before the
expiration of the Term of this Lease, Landlord shall have the right, at its
option, to terminate all subleases, or to take over any sublease of the Premises
or any portion thereof and such subtenant shall attorn to Landlord, as its
landlord, under all the terms and obligations of such sublease occurring from
and after such date, but excluding previous acts, omissions, negligence or
defaults of Tenant and any repair or obligation in excess of available net
insurance proceeds or condemnation award.
(e) Landlord shall have the right to sell, transfer,
assign, pledge, and convey all or any part of the Building and any and all of
Landlord's rights under this Lease. In the event Landlord assigns or otherwise
conveys its rights under this Lease, Landlord shall be entirely freed and
released from any obligations accruing thereafter under the Lease, and Tenant
agrees to look solely to Landlord's successor in interest for performance of
such obligations.
12. INSURANCE.
(a) Throughout the Term of this Lease, Landlord shall
maintain Special Form Insurance on the Building and the Premises, such
policy(ies) to cover Landlord's interest in the Building and Premises for not
less than the full replacement cost thereof. Such insurance shall be maintained
at the expense of Landlord (as a part of Operating Expenses), and payments for
losses thereunder shall be made solely to Landlord or the holder or holders of
any mortgage or deed to secure debt encumbering the Land, Building or Project
(collectively, "Mortgagees"; each, a "Mortgagee") as their respective interests
shall appear.
(b) Tenant shall maintain, at its expense, in an amount
equal to the full replacement cost thereof, Special Form Insurance on all of its
personal property, including furniture, equipment, fittings, installations,
supplies, phone systems, computer systems and removable trade fixtures, located
in the Premises. Such policy shall include Business Interruption/Additional
Expense coverage on a loss sustained basis.
(c) Tenant shall also maintain Worker's Compensation and
Employer's Liability Insurance in form and amount as required by law.
(d) Tenant and Landlord shall, each at its own expense,
maintain a policy or policies of Commercial General Liability Insurance (written
on an occurrence basis) with respect to the respective activities of each on the
Land and in the Building with the premiums thereon fully paid on or before the
date due, issued by and binding upon an insurance company authorized to conduct
such business in the State of Georgia. Such Commercial General Liability
Insurance to be maintained by Tenant and Landlord under this Paragraph shall
afford minimum protection of not less than $2,000,000.00 combined single limit
coverage of bodily injury, property damage, or combination thereof; and such
Commercial General Liability Insurance to be maintained by Tenant shall name
Landlord, its managing agent, and any other party reasonably required by
Landlord, as additional insureds. Such insurance coverage maintained by Tenant
shall also include, without limitation, personal injury and contractual
liability coverage for the performance by Tenant of the indemnity agreements set
forth in this Lease. Landlord shall not be required to maintain insurance
against thefts within the Premises, the Building, or on the Land.
(e) Tenant shall also maintain and provide such other
form or forms of insurance, changes in amounts of coverage, or endorsements as
Landlord, or any Mortgagee of Landlord, may reasonably require from time to
time.
(f) All Commercial General Liability Insurance and
Special Form Insurance maintained by Tenant shall be written as primary policies
and shall not call for contribution from any other insurance available to
Landlord.
(g) Tenant shall, prior to the Commencement Date, provide
Landlord with current Certificates of Insurance, and receipts for payment of
premiums therefor, evidencing Tenant's compliance with the terms and
requirements of this Paragraph 12. All policies required to be maintained by
Tenant under this Paragraph 12 shall contain a provision whereby the insurer is
not allowed to cancel, fail to renew or change materially the coverage, without
first giving thirty (30) days' prior written notice to Landlord. Tenant shall
also obtain the agreement of Tenant's insurers to notify Landlord that a policy
is due to expire at least thirty (30) days prior to such
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expiration. Not less than fifteen (15) days prior to the expiration date of any
such policies, certificates of the renewals thereof (bearing notations
evidencing the payment of renewal premiums) shall be delivered to Landlord.
(h) All insurance policies carried with respect to this
Paragraph 12 shall be issued by insurance companies licensed to do business in
the State of Georgia with a general policyholder's rating of at least A and a
financial rating of at least VIII in the most current Best's Insurance Reports.
(i) All insurance policies required to be carried by
Tenant with respect to this Paragraph 12 shall be procured and maintained in
full force and effect by Tenant at its sole cost and expense and continue in
full force and effect during the Term of the Lease, any renewals or extensions
thereof, any holdover period under the Lease, any tenancy by whatsoever name
called and any period of occupancy by Tenant of the Premises prior to the
Commencement Date of the Lease or subsequent to the expiration or earlier
termination of the Lease.
(j) Anything in this Lease to the contrary
notwithstanding (including, without limitation, Paragraph 14 hereof), Landlord
and Tenant each hereby waive any and all rights of recovery, claim, action, or
cause of action, against the other, its agents, officers, or employees, for any
loss or damage that may occur to the Premises or a part thereof, or any
improvements thereto, or any personal property of such party therein, by reason
of fire, the elements, or any other cause(s), regardless of cause or origin,
including negligence of the other party hereto, its agents, officers or
employees, where such loss or damage would either be covered by insurance
required to be maintained under this Paragraph 12 (whether or not such insurance
is in effect) or to the extent such loss or damage is actually covered by any
other insurance carried by each of them. All insurance policies carried with
respect to this Paragraph 12, if permitted under applicable law, shall contain a
provision whereby the insurer waives, prior to loss, all rights of subrogation
against Landlord and Tenant. Landlord and Tenant acknowledge that the waivers
and releases set forth in this subparagraph are intended to result in any loss
or damage which is covered by insurance being borne by the insurance carrier of
Landlord or Tenant, as the case may be, or by the party having the insurable
interest if such loss is not covered by insurance and this Lease requires such
party to maintain insurance to cover such loss. Landlord and Tenant agree that
such waivers and releases were freely bargained for and willingly and
voluntarily agreed to by Landlord and Tenant and do not constitute a violation
of public policy.
13. FIRE AND CASUALTY DAMAGE.
(a) If the Building should be totally destroyed by fire,
tornado or other casualty or if it should be damaged, to the extent that, in
Landlord's reasonable judgment repair would not be economically feasible, or
that rebuilding or repairs cannot, in Landlord's estimation, be completed within
two hundred (200) days after the date of such damage; or if the insurance
proceeds remaining after any required payments to Mortgagees are insufficient to
repair such damage or destruction, then either Tenant or Landlord shall have the
right, at its option, to terminate this Lease by giving the other party written
notice of such termination within forty-five (45) days after the date of notice
from Landlord to Tenant as to such determination, and the Rent shall be
apportioned and paid to the date on which possession is relinquished or the date
of such damage, whichever last occurs, and Tenant shall immediately vacate the
Premises according to such notice of termination. Landlord shall notify Tenant
of its determination as to the length of time necessary to repair the Building,
the economic feasibility of restoration and the availability of insurance
proceeds within forty-five (45) days after such casualty.
(b) If the Building should be damaged by any peril
covered by the insurance to be provided by Landlord under Paragraph 12(a) above,
but only to such extent that rebuilding or repairs are, in Landlord's
estimation, economically feasible and can be completed within two hundred (200)
days after the date of such damage and the proceeds of such insurance, after
deducting any required payments to Mortgagees, are sufficient for such
rebuilding or repairs, this Lease shall not terminate, and Landlord shall at its
sole cost and expense thereupon proceed with reasonable diligence to rebuild and
repair the Building to substantially the condition in which it existed prior to
such damage, except that: (i) Landlord shall not be required to rebuild, repair
or replace any part of the partitions, fixtures, additions and other
improvements which may have been placed in, on or about the Premises by Tenant;
and (ii) Landlord may elect not to rebuild if such damage occurs during the last
year of the Term, exclusive of any option to extend the Term which is
unexercised at the time of such damage. If the Premises are untenantable in
whole or in part following such damage, the Rent payable hereunder during the
period in which the Premises are untenantable shall be reduced to such extent as
may be fair and reasonable under all of the circumstances. In the event that
Landlord should fail to complete such repairs and rebuilding within two hundred
(200) days after the date of such damage, Tenant may, at its option, terminate
this Lease by delivering written notice of termination to Landlord within thirty
(30) days after the expiration of such two hundred (200) day period. If Tenant
fails to terminate this Lease within such thirty (30)-day period, Tenant shall
be deemed to have waived its rights to terminate by reason of the failure of
Landlord to complete such repairs and rebuilding within two hundred (200) days
after the date of such damage. If Tenant elects not to terminate this Lease and
Landlord fails to complete such repairs and rebuilding to such a condition that
Tenant is no longer entitled to any abatement of Rent hereunder within two
hundred sixty (260) days after the date of the casualty (the "Outside Completion
Date"), then, for each day after the Outside Completion Date that such repairs
and rebuilding remain unfinished, Tenant shall be entitled to twice the Rent
abatement that it would have been entitled to prior to such Outside Completion
Date. In other words, if the entire Premises are untenantable on the day after
the Outside Completion Date to such a degree that Tenant is entitled to an
abatement of all Rent due under this Lease, then commencing on such first day
after the Outside Completion Date, Tenant shall be entitled to two (2) days of
Rent abatement for each day until such repairs and rebuilding have been
completed. The Outside Completion Date shall be extended on a day for day basis
for each day of Force Majeure and Tenant Delay (as hereinafter defined). If the
Premises should be substantially destroyed by fire, tornado or other casualty at
any time during the last twelve (12) months of the Term of the Lease (exclusive
of any option to extend the Term which is unexercised at the time of such
damage), then Tenant may terminate this Lease by written notice given to
Landlord within forty-five (45) days after the date of such destruction, and
Rent and other charges under this Lease will be apportioned as of the date of
destruction and Tenant will be discharged from responsibility to repair the
damage, but all proceeds of insurance covering the loss shall in that
circumstance belong to Landlord free of any claim thereto by Tenant. As used in
this Paragraph, the term "Tenant Delay" refers to each day that: (i)
construction is delayed because of changes by Tenant in the working drawings and
specifications; (ii) construction is delayed because of requirements by Tenant
for materials, finishes or installations which are not Building Standard and are
not set forth in the working drawings and specifications, as approved by
Landlord; or (iii) construction is delayed because of the failure to perform of
a party employed by Tenant.
(c) Notwithstanding anything herein to the contrary, in
the event any Mortgagee requires that the insurance proceeds be applied to the
indebtedness due such Mortgagee, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within fifteen
(15) days after such requirement is made by any such Mortgagee, whereupon all
rights and obligations hereunder shall cease and terminate. In no event shall
Landlord be required under this Lease to incur any expenses in excess of
available insurance proceeds other than the deductible amounts for such
insurance for the purpose of repairing or restoring the Building or the Premises
after a fire or other casualty.
14. WAIVER OF CLAIMS; LANDLORD'S LIABILITY AND INDEMNIFICATION.
(a) Tenant waives and releases all claims against
Landlord, its agents, employees, representatives and contractors for damage to
any property or injury to, or death of, any person in, upon, or about the
Premises arising at any time and from any cause other than by reason of the sole
negligence or willful misconduct of Landlord, its agents, employees,
representatives, or contractors.
(b) Without limiting the generality of Paragraph 14(a),
Tenant agrees that Landlord, its agents, employees, representatives and
contractors will not be liable for any loss, injury, death, or damage (including
consequential damages) to persons,
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property, or Tenant's business occasioned by theft, act of God, public enemy,
injunction, riot, strike, insurrection, war, vermin, court order, requisition,
order of governmental body or authority, electricity, computer or electronic
equipment or systems malfunction, fire, explosion, falling objects, steam,
water, rain or snow, leak or flow of water (including water from the elevator
system), rain or snow from the Premises or into the Premises or from the roof,
street, subsurface or from any other place or by dampness or from the breakage,
leakage, obstruction, or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning, or lighting fixtures of the Building, or
from construction, repair, alteration of the Premises or from any acts or
omissions of any other tenant, occupant, or visitor of the Premises, or from any
other cause whatsoever, except if such loss, injury, death, or damage to
persons, property, or Tenant's business is occasioned by the sole negligence or
willful misconduct of the Landlord, its agents, employees, representatives or
contractors.
(c) Except as otherwise provided in Paragraph 12(j)
above, Tenant shall indemnify Landlord, its agents, employees, representatives
and contractors and shall hold Landlord, its agents, employees, representatives
and contractors harmless from any damage to any property or injury to, or death
of, any person arising from: (i) the use of the Premises by Tenant or any person
claiming under Tenant; (ii) any activity, work, or thing done by Tenant on or
about the Premises; (iii) any acts, omissions or negligence of Tenant, or any
person claiming under Tenant, or the employees, agents, contractors, invitees,
or visitors of Tenant; (iv) any breach, violation, or nonperformance by Tenant,
or any person claiming under Tenant, or the employees, agents, contractors,
invitees, or visitors of Tenant, of any term, covenant, or provision of this
Lease or any law ordinance, or governmental requirement of any kind; (v) (except
for loss of use of all or any portion of the Premises or Tenant's property
located within the Premises that is proximately caused by or results proximately
from the sole negligence of the Landlord its agents, employees, representatives,
or contractors), any injury or damage to the person, property, or business of
Tenant, its employees, agents, contractors, invitees, visitors, or any other
person entering upon the Premises under the invitation of Tenant. The foregoing
indemnity obligations of Tenant shall include attorneys' fees, investigation
costs, and all other reasonable costs and expenses incurred by Landlord from the
first notice that any claim or demand has been made or may be made. The
provisions of this Paragraph 14 shall survive for a period of one (1) year
following the expiration or termination of this Lease with respect to any
damage, injury, or death occurring before such expiration or termination.
15. CONDEMNATION.
(a) If the whole or any substantial part of the Premises
should be taken for any public or quasi-public use under governmental law,
ordinance or regulation, or by right of eminent domain, or by private purchase
in lieu thereof, and the taking would prevent or materially interfere with the
use of the Premises, for the purpose for which they are being used, this Lease
shall terminate and the Rent shall be apportioned and paid to the date on which
the physical taking of the Premises shall occur.
(b) If part of the Premises shall be taken for any public
or quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and this Lease
is not terminated as provided in subparagraph 15(a) above, this Lease shall not
terminate but the Rent payable hereunder during the unexpired portion of this
Lease shall be reduced to such extent as may be fair and reasonable under all of
the circumstances.
(c) All compensation awarded for any taking (or the
proceeds of private sale in lieu thereof) of the Premises, the Building, the
Project or other improvements, or any part thereof, shall be the property of
Landlord and Tenant hereby assigns its interest in any such award to Landlord;
provided, however Landlord shall have no interest in any award made to Tenant
for loss of business or for the taking of Tenant's fixtures.
(d) In no event shall Landlord be required under this
Lease to incur any expenses in excess of available proceeds from any taking
contemplated hereby for the purposes of restoring the Building or the Premises
after any such taking.
16. HOLDING OVER. Tenant will, at the termination of this Lease by
lapse of time or otherwise, yield up immediate possession to Landlord with all
repairs and maintenance required herein to be performed by Tenant completed.
Should Tenant continue to hold the Premises after the expiration or earlier
termination of this Lease, or after reentry by Landlord without terminating this
Lease, such holding over, unless otherwise agreed to by Landlord in writing,
shall constitute and be construed as a tenancy at sufferance and not a tenancy
at will. Tenant shall have no right to notice under Official Code of Georgia
Annotated ss.44-7-7 of the termination of its tenancy. Tenant shall pay monthly
installments of Rent equal to one hundred fifty percent (150%) of the monthly
portion of Rent in effect as of the date of expiration or earlier termination,
and subject to all of the other terms, charges and expenses set forth herein
except any right to renew this Lease or to expand the Premises or any right to
additional services. Tenant shall also be liable to Landlord for all damage
which Landlord suffers because of any holding over by Tenant. No holding over by
Tenant, whether with or without consent of Landlord, shall operate to extend the
Term except as otherwise expressly provided in a written agreement executed by
both Landlord and Tenant. The provisions of this Paragraph 16 shall survive the
expiration or earlier termination of this Lease.
17. QUIET ENJOYMENT. Landlord represents and warrants that it has
full right and authority to enter into this Lease and that Tenant, upon paying
the Rent herein set forth and performing its other covenants and agreements
herein set forth, shall peaceably and quietly have, hold and enjoy the Premises
for the Term without hindrance or molestation from Landlord, subject to the
terms and provisions of this Lease.
18. EVENTS OF DEFAULT. The following events shall be deemed to be
"Events of Default" by Tenant under this Lease:
(a) Tenant shall fail to pay any installment of the Rent
herein reserved when due, or any other payment or reimbursement to Landlord
required herein when due, and such failure shall continue for a period of five
(5) days from the date such payment was due if such failure is a failure to pay
a regularly scheduled installment of monthly Base Rent or five (5) days after
written notice if such failure is a failure to pay any other sum.
(b) Tenant or any guarantor of Tenant's obligations
hereunder shall not pay its debts as they become due or shall admit in writing
its inability to pay its debts or shall make a general assignment for the
benefit of creditors; or Tenant or any such guarantor shall commence any case,
proceeding or other action seeking to have an order for relief entered on its
behalf as a debtor or to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution, or
composition of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all, or any
substantial part of, its property; or Tenant or any such guarantor shall take
any action to authorize any of the actions set forth above in this Paragraph.
(c) Any case, proceeding or other action against Tenant
or any guarantor of Tenant's obligations hereunder shall be commenced seeking to
have an order for relief entered against it as debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property and such case or
action is not dismissed within one hundred twenty (120) days after it is
commenced.
(d) A receiver or trustee shall be appointed for all or
substantially all of the assets of the Tenant.
(e) Intentionally Omitted.
(f) Tenant shall fail to discharge any lien placed upon
the Premises in violation of Paragraph 23 hereof within sixty (60) days after
any such lien or encumbrance is filed against the Premises.
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(g) Intentionally Omitted.
(h) Tenant shall fail to comply with any term, provision
or covenant of this Lease (other than the foregoing in this Paragraph 18), and
shall not cure such failure within thirty (30) days after written notice thereof
to Tenant; provided, however that if such failure is of a nature that it cannot
reasonably be cured within such thirty(30) day period, and if Tenant commences
to cure such failure within twenty (20) days after notice thereof from Landlord
and thereafter diligently prosecutes the cure thereof, such thirty (30) day
period shall be extended to one hundred twenty (120) days.
19. REMEDIES.
(a) Upon the occurrence of any one or more of the
aforesaid Events of Default, or upon the occurrence of any other default or
defaults by Tenant under this Lease, Landlord may, at Landlord's option, without
any demand or notice whatsoever (except as expressly required in this Paragraph
19):
(i) Terminate this Lease, and Tenant shall
remain liable for all Rent and all other obligations under this Lease
arising up to the date of such termination; or
(ii) Terminate this Lease, and Tenant shall
remain liable for all damages Landlord may incur by reason of Tenant's
default, including, without limitation, a sum which, at the date of
such termination, represents the then value of the excess, if any, of
(1) the total Rent, and all other obligations which would have been
payable hereunder by Tenant for the period commencing with the day
following the date of such termination and ending with the expiration
date of the Term, over (2) the aggregate reasonable rental value of the
Premises for the same period, plus (3) the costs of recovering the
Premises and all other expenses incurred by Landlord due to Tenant's
default, including, without limitation, reasonable attorney's fees,
plus (4) the unpaid Rent earned as of the date of termination plus
interest at the "Interest Rate" (as hereinafter defined), plus other
sums of money and damages owing on the date of termination by Tenant to
Landlord under this Lease or in connection with the Premises, all of
which excess sum shall be deemed immediately due and payable; or
(iii) Landlord may at its option, declare the
difference, if any, between (A) the entire amount of Base Rent and
Additional Rent which would become due and payable during the remainder
of the Term, discounted to present value using a discount rate equal to
the "Prime Rate" (as hereinafter defined) in effect as of the date of
such declaration, and (B) the fair rental value of the Premises during
the remainder of the Term (taking into account, among other factors,
the anticipated duration of the period the Premises will be unoccupied
prior to reletting and the anticipated cost of reletting the Premises),
also discounted to present value using a discount rate equal to the
Prime Rate in effect as of the date of such declaration together with
all Base Rent, Additional Rent and other sums theretofore to be due and
payable; it being understood and agreed that such payment shall be and
constitute Landlord's liquidated damages, Landlord and Tenant
acknowledging and agreeing that it is difficult or impossible to
determine the actual damages Landlord would suffer from Tenant's breach
hereof and that the agreed upon liquidated damages are not punitive or
penalties and are just, fair and reasonable, all in accordance with
Official Code of Georgia Annotated ss. 13-6-7. If Landlord exercises
the election set out in this subparagraph, Landlord hereby waives any
right to assert that Landlord's actual damages are greater than the
amount calculated hereunder. "Prime Rate" means the Prime Rate
published in the Wall Street Journal from time to time (adjusted daily)
as being the base rate on corporate loans at large U.S. money center
commercial banks. If the Wall Street Journal ceases to publish such a
Prime Rate, the Prime Rate shall be the per annum interest rate which
is publicly announced (whether or not actually charged in each
instance) from time to time (adjusted daily) by Wachovia Bank of
Georgia, N.A., Atlanta, Georgia as its "prime rate" or similar
corporate borrowing reference rate; or
(iv) Without terminating this Lease, Landlord may
in its own name but as agent for Tenant enter into and upon and take
possession of the Premises or any part thereof, and, at Landlord's
option, remove persons and property therefrom and such property, if
any, may be removed and stored in a warehouse or elsewhere at the cost
of, and for the account of Tenant, and Landlord may rent the Premises
or any portion thereof as the agent of Tenant, with or without
advertisement, and by private negotiations and for any term upon such
reasonable terms and conditions as Landlord may deem necessary or
desirable in order to relet the Premises. Upon each such reletting, all
rentals received by Landlord from such reletting shall be applied:
first, to the payment of any indebtedness (other than any Rent due
hereunder) from Tenant to Landlord; second, to the payment of any
reasonable costs and expenses of such reletting, including, without
limitation, brokerage fees and attorney's fees and costs of alterations
and repairs; third, to the payment of Rent and other charges then due
and unpaid hereunder; and the residue, if any, shall be held by
Landlord to the extent of and for application in payment of future
Rent, if any becomes owing, as the same may become due and payable
hereunder. In reletting the Premises as aforesaid, Landlord may grant
reasonable rent concessions and Tenant shall not be credited therefor.
If such rentals received from such reletting shall at any time or from
time to time be less than sufficient to pay to Landlord the entire sums
then due from Tenant hereunder, Tenant shall pay any such deficiency to
Landlord. Such deficiency shall, at Landlord's option, be calculated
and paid monthly. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate
this Lease for any such previous Event of Default provided same has not
been cured; or
(v) Without terminating this Lease, Landlord may
enter into and upon the Premises, maintain the Premises and repair or
replace any damage thereto or do anything for which Tenant is
responsible hereunder. Tenant shall reimburse Landlord within ten (10)
days after demand for any expenses which Landlord incurs in thus
effecting Tenant's compliance under this Lease, and Landlord shall not
be liable to Tenant for any damages with respect thereto; or
(vi) Intentionally Omitted; or
(vii) Allow the Premises to remain unoccupied, and
Tenant shall remain liable for the Rent and all other obligations
accruing over the balance of the Term; or
(viii) Terminate the Tenant's right to possession
of the Premises, without terminating the Lease, and Tenant shall remain
liable for the Rent and all other obligations accruing over the balance
of the Term; or
(ix) Terminate the Lease and Tenant's right to
possession of the Premises, and Tenant shall remain liable for the Rent
and all other obligations accruing over the balance of the Term; or
(x) Enforce the performance of Tenant's
obligations hereunder by injunction or other equitable relief, which
remedy may be exercised upon any actual or threatened Event of Default
by Tenant, without regard to whether Landlord may have an adequate
remedy at law; or
(xi) Intentionally Omitted; and
(xii) Pursue any combination of the foregoing
remedies permitted by law and such other remedies as are available at
law or equity.
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(b) Whenever Landlord terminates this Lease, it shall do
so by giving Tenant written notice of termination, in which event this Lease
shall expire and terminate on the date specified in such notice with the same
force and effect as though the date specified were the date herein originally
fixed as the Lease Expiration Date, and all rights of Tenant under this Lease
and in and to the Premises shall expire and terminate and Tenant shall surrender
the Premises to Landlord on the date specified in such notice, and if Tenant
fails to so surrender, Landlord shall have the right to enter upon and take
possession of the Premises and to expel or remove Tenant and its effects.
(c) Whenever Landlord terminates Tenant's right to
possession of the Premises without terminating this Lease, it shall do so by
giving Tenant written notice of termination of its right of possession, in which
event Tenant shall surrender the Premises to Landlord on the date specified in
such notice; and if Tenant fails to so surrender, Landlord shall have the right
to enter upon and take possession of the Premises and to expel or remove Tenant
and its effects.
(d) If this Lease shall terminate as a result of or while
there exists an uncured Event of Default hereunder, any funds of Tenant held by
Landlord may be applied by Landlord to unpaid Rent and any damages payable by
Tenant as a result of such termination or default, in Landlord's sole
discretion.
(e) Landlord shall in no way be responsible or liable to
Tenant for any failure to rent the Premises or any part thereof, or for any
failure to collect any rent due upon such reletting.
(f) If any statute or rule of law shall limit any of
Landlord's remedies as hereinabove set forth, Landlord shall nonetheless be
entitled to any and all other remedies hereinabove set forth.
(g) All installments of Rent, and all other amounts of
money payable by Tenant to Landlord under this Lease, if not received by
Landlord within five (5) days of the date due, shall be subject to a late fee of
$500.00, which late fee represents an agreed upon charge for the administrative
expense suffered by Landlord as a result of such late payment and not payment
for the use of money or a penalty; and (b) the amount past due (excluding late
fees), shall bear simple interest from the date due until paid at twelve percent
(12%) per annum (the "Interest Rate"); and Tenant agrees to pay said late fee
and interest immediately and without demand. However, if at the time such
interest is sought to be imposed, the Interest Rate exceeds the maximum rate
permitted under federal law or under the laws of the State of Georgia, the
Interest Rate shall be the maximum rate of interest then permitted by applicable
law. Should Tenant make a partial payment of past due amounts, the amount of
such partial payment shall be applied first to late fees, second to accrued but
unpaid interest at the Interest Rate, and third to past due amounts in the order
of their due dates. The provision for such late charge shall be in addition to
all of Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
(h) In the event Tenant's check, given to Landlord in
payment, is returned by the bank for non-payment, Tenant agrees to pay a service
charge not to exceed $20.00 or five percent (5%) of the face amount of the
check, whichever is greater.
(i) If Landlord shall fail to keep or perform any of its
obligations under this Lease with respect to the making of any payments to
Tenant (including, without limitation, the payment of any allowances or tenant
inducements) or the performance of any other Lease obligation, upon the
continuance of such failure on Landlord's part for thirty (30) days after
receipt by Landlord of written notice from Tenant specifying the failure
[provided, however, that if such failure is of a nature that it cannot
reasonably be cured within such thirty (30) day period and if Landlord commences
to cure such failure within thirty (30) days after notice thereof from Tenant
and thereafter diligently prosecutes the cure thereof, such thirty (30) day
period shall be extended one hundred twenty (120) days], and without waiving or
releasing Landlord from any obligation, then Tenant may (but shall not be
obligated to do so) make such payment or perform such obligation. All sums so
paid by Tenant and all necessary and incidental costs and expenses, including
reasonable attorneys' fees, incurred by Tenant in making such payments or
performing such obligations, together with interest thereon at the Interest Rate
from the date of payment, the date payment was due or the date a cost was
incurred, as applicable, shall be paid by Landlord to Tenant within thirty (30)
days after demand, and if not so paid by Landlord, Tenant shall have the right
to offset the cost of such cure and any payment due Tenant from Landlord which
Landlord has failed to pay within any applicable cure period against any Rent or
any other amount payable under this Lease. Notwithstanding the foregoing, Tenant
shall have no right to cure any default by Landlord unless and until Tenant has
given not less than thirty (30) days prior written notice of such default to the
holder of any mortgage, deed to secure debt or deed of trust on the Premises of
which Tenant has received notice from Landlord and such holder fails to cure or
cause Landlord to cure said default. All rights and remedies of Tenant created
or otherwise existing at law or in equity are cumulative and the exercise of one
or more rights or remedies shall not be taken to exclude or waive the right to
exercise any other rights or remedies.
(j) The foregoing provisions of this Paragraph 19 shall
survive the expiration or earlier termination of this Lease and shall apply to
any renewal or extension of this Lease.
20. BANKRUPTCY.
(a) Notwithstanding anything in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated as Rent, shall constitute Rent for
the purposes of the Bankruptcy Code. 11 U.S.C. ss.502(b)(7).
(b) This is a contract under which applicable law excuses
Landlord from accepting performance from (or rendering performance to) any
person or entity other than Tenant within the meaning of the Bankruptcy Code. 11
U.S.C. ss.365(c), 365(e)(2).
(c) If this Lease is assigned to any person or entity
pursuant to the provisions of the Bankruptcy Code, any and all monies or other
consideration payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or
the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and be promptly paid or delivered to Landlord.
(d) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed, without
further act or deed, to have assumed all of the obligations arising under this
Lease on and after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Landlord an instrument confirming such assumption.
21. INTENTIONALLY OMITTED.
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22. SUBORDINATION; ESTOPPEL CERTIFICATES.
(a) Tenant accepts this Lease subject and subordinate to
the lien or security title of any recorded mortgage, deed to secure debt or
ground lease hereafter created upon the Premises, and to all existing recorded
restrictions, covenants, easements and agreements with respect to the Project,
or any part thereof, and all amendments, modifications and restatements thereof,
and all replacements and substitutions therefor. The subordination created
hereby is intended to be self-operative and no further instrument shall be
required to effect such subordination of this Lease. Nevertheless, Tenant agrees
to execute such documents as Landlord may request to evidence and memorialize
such subordination. If Tenant fails to execute any such requested documentation
within ten (10) days after Landlord's request therefor, Landlord is hereby
irrevocably vested with full power and authority to subordinate Tenant's
interest under this Lease in Tenant's name and on Tenant's behalf to the lien or
security title of any mortgage, deed to secure debt or ground lease hereafter
placed on the Premises, and to any future instrument amending, modifying,
restating, replacing or substituting for any such existing recorded
restrictions, covenants, easements and agreements. Tenant hereby irrevocably
appoints Landlord as Tenant's agent and attorney-in-fact for the purpose of
executing, acknowledging and delivering any such instruments and certificates.
Such power of attorney is coupled with an interest and shall be irrevocable. If
the interest of Landlord under this Lease shall be transferred by reason of
exercise of a power of sale, foreclosure or other proceeding for enforcement of
any mortgage or deed to secure debt on the Premises, Tenant shall be bound to
the transferee (sometimes hereinafter referred to as the "Purchaser"), at the
option of the Purchaser, under the terms, covenants and conditions of this Lease
for the balance of the Term remaining, and any extensions or renewals, with the
same force and effect as if the Purchaser were Landlord hereunder, and, if
requested by the Purchaser, Tenant agrees to be bound and obligated hereunder to
the Purchaser (including the mortgagee or grantee under any such mortgage or
deed to secure debt), as its landlord.
(b) Landlord represents and warrants to Tenant that
neither the Premises, the Building, nor the Land, is presently encumbered by any
mortgage, deed to secure debt, trust deed or subject to any ground lease
(collectively, a "Security Instrument"). Landlord agrees that upon request of
Tenant, it will request from the holders of any future mortgages or other
security instruments encumbering the Building or any interest of Landlord
therein, a subordination, non-disturbance and attornment agreement ("SNDA") in
favor of Tenant, on such holder's standard form of SNDA. However, Landlord shall
not be obligated to expend any money to obtain such SNDA, and the inability or
failure of Landlord to obtain such SNDA shall not constitute a default by
Landlord hereunder, entitle Tenant to cancel or otherwise terminate this Lease,
or affect the automatic subordination of this Lease, to all such future Security
Instruments.
(c) Tenant shall, from time to time, within twenty (20)
days after request from Landlord, or from any mortgagee of Landlord, execute,
acknowledge and deliver in recordable form a certificate certifying, to the
extent true, that this Lease is in full force and effect and unmodified (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications); that the Term has commenced and the
full amount of the Rent then accruing hereunder; the dates to which Rent has
been paid; that, subject to Paragraph 2(b) above, Tenant has accepted possession
of the Premises and that any improvements required by the terms of this Lease to
be made by Landlord have been completed to the satisfaction of Tenant; the
amount, if any, that Tenant has paid to Landlord as a Security Deposit; that no
Rent under this Lease has been paid more than thirty (30) days in advance of its
due date; that the address for notices to be sent to Tenant is as set forth in
this Lease (or has been changed by notice duly given and is as set forth in the
certificate); that Tenant, to Tenant's knowledge, as of the date of such
certificate, has no charge, lien, or claim of offset under this Lease or
otherwise against Rent or other charges due hereunder; that, to the knowledge of
Tenant, Landlord is not then in default under this Lease; and such other matters
as may be reasonably requested by Landlord or any mortgagee or lessor of
Landlord. Any such certificate may be relied upon by Landlord or any mortgagee
or lessor of Landlord, any beneficiary, purchaser or prospective purchaser of
the Building or any interest therein, or by anyone to whom Landlord may provide
said certificate.
23. MECHANICS LIENS; OTHER TAXES.
(a) Tenant shall have no authority, express or implied to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind the interests of Landlord in the Premises or to charge
the Rent payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs, and each such claim shall affect and each such lien
shall attach to, if at all, only the leasehold interest granted to Tenant by
this instrument. Tenant covenants and agrees that it will pay or cause to be
paid all sums legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the Premises on
which any lien is or can be validly and legally asserted against its leasehold
interest in the Premises or the improvements thereon and that it will save and
hold Landlord harmless from any and all loss, cost or expense based on or
arising out of asserted claims or liens against the leasehold estate or against
the right, title and interest of the Landlord in the Premises or under the terms
of this Lease. Tenant agrees to give Landlord immediate written notice if any
lien or encumbrance is placed on the Premises. In the event that Tenant shall
not, within sixty (60) days following the imposition of any such lien, cause the
same to be released of record by payment or posting of a proper bond, Landlord
shall have, in addition to all other remedies provided herein and by law, the
right, but not the obligation, upon not less than ten (10) days prior written
notice to Tenant, to cause the same to be released by such means as it shall
deem proper, including payment of the claim giving rise to such lien. All such
sums paid by Landlord and all expenses incurred by it in connection therewith
shall be considered Additional Rent and shall be payable to Landlord by Tenant
within ten (10) days after demand and with interest at the Interest Rate.
(b) Tenant shall be liable for all taxes levied or
assessed against personal property, furniture or fixtures placed by Tenant in
the Premises. If any such taxes for which Tenant is liable are levied or
assessed against Landlord or Landlord's property and if Landlord elects to pay
the same or if the assessed value of Landlord's property is increased by
inclusion of personal property, furniture or fixtures placed by Tenant in the
Premises, and Landlord elects to pay the taxes based on such increase, Tenant
shall pay to Landlord within ten (10) days after demand and delivery to Tenant
of reasonable supporting documentation showing Tenant's portion thereof, that
part of such taxes.
24. INTENTIONALLY OMITTED.
25. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves and may
exercise the following rights without affecting Tenant's obligations hereunder:
(a) to change the name, street address, or suite numbers
of the Building;
(b) to install or maintain a sign or signs on the
exterior walls of the Building;
(c) to designate all sources furnishing sign painting and
lettering, ice, drinking water, towels, coffee cart service and toilet supplies,
lamps and bulbs used on the Premises;
(d) to retain at all times pass keys to the Premises;
(e) to close the Building after regular working hours and
on legal holidays subject, however to Tenant's right to admittance, under such
reasonable regulations as Landlord may prescribe from time to time, which may
include by way of example but not of limitation, that persons entering or
leaving the Building identify themselves to a watchman by registration or
otherwise and that said persons establish their right to enter or leave the
Building; and
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(f) to take any and all measures, including inspections,
repairs, alterations, decorations, additions and improvements to the Premises or
the Building, and identifications and admittance procedures for access to the
Building as may be necessary or desirable for the safety, protection,
preservation or security of the Premises or the Building or the Landlord's
interests or as may be necessary or desirable in the operation of the Building,
provided such measures shall not materially interfere with Tenant's use or
enjoyment of the Premises or the Common Areas.
The Landlord may enter upon the Premises and may exercise any or all of
the foregoing rights hereby reserved without the same being construed as an
unlawful entry into the Premises and without being deemed guilty of an eviction,
actual or constructive, or without being deemed guilty of trespass or
disturbance of the Tenant's use or possession and without abatement of Rent or
affecting any of Tenant's obligations hereunder.
26. NOTICES. Each provision of this instrument or of any
applicable governmental laws, ordinances, regulations and other requirements
with reference to the sending, mailing or delivery of any notice or the making
of any payment by Landlord to Tenant or with reference to the sending, mailing
or delivery of any notice or the making of any payment by Tenant to Landlord
shall be deemed to be complied with when and if the following steps are taken:
(a) All Rent and other payments required to be made by
Tenant to Landlord hereunder shall be payable to Landlord at the address
hereinbelow set forth or at such other address as the Landlord may specify from
time to time by written notice delivered in accordance herewith. Tenant's
obligations to pay Rent and any other amounts to Landlord under the terms of
this Lease shall not be deemed satisfied until such Rent and other amounts have
been actually received by Landlord. Landlord's obligation to pay any amounts to
Tenant under the terms of this Lease shall not be deemed satisfied until such
amounts have been actually received by Tenant.
(b) All payments required to be made by either party
hereunder shall be payable to the other party at the addresses hereinbelow set
forth, or at such other addresses within the continental United States as Tenant
or Landlord may specify from time to time by written notice delivered in
accordance herewith.
(c) Except for legal process, which shall be served as by
law provided, any notice or communication required or permitted hereunder shall
be in writing and shall be sent either by: (i) personal delivery service with
charges therefor billed to shipper; (ii) nationally recognized overnight
delivery service (such as Federal Express, United Parcel Service, Airborne,
etc.) with charges therefor billed to shipper; or (iii) United States Mail,
postage prepaid, registered or certified mail, return receipt requested. All
such notices and communications shall be addressed to Landlord or Tenant, as the
case may be, at the addresses set forth below, or at such other addresses as
Landlord or Tenant may have designated by notice to the other given as provided
above. Any notice or communication sent as above provided shall be deemed given
or delivered: (A) upon receipt, if personally delivered (provided delivery is
confirmed by the courier delivery service, if sent by such means); (B) on the
date of delivery by any nationally recognized overnight delivery service; or (C)
if sent by United States Mail, on the date appearing on the return receipt
therefor, or if there is no date on such return receipt, the receipt date shall
be presumed to be the postmark date appearing on such return receipt. Notice
shall be considered given and received on the latest original delivery or
attempted delivery date to all persons and addresses to which notice is to be
given, as indicated on the return receipt(s) of the United States Mail or
delivery receipts of the personal delivery service or nationally recognized
overnight delivery service. Any notice or communication which cannot be
delivered because of failure to provide notice of a change of address as herein
provided or for which delivery is refused shall be deemed to have been given and
received on the date of attempted delivery. Any notice or communication required
or permitted hereunder shall be addressed as follows:
Landlord: Landlord's Address for Payments:
Acquiport Peachtree Ridge, Inc.
c/o Brannen/Xxxxxxx Company
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Property Management
Landlord's Address for Notices:
Acquiport Peachtree Ridge, Inc.
c/o X.X. Xxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxx
With a copy to:
Xxxxxxx/Xxxxxxx Company
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Property Management
With a copy to:
Xxxxxxxx & Xxxxxxx, P.C.
2800 Marquis One Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tenant: SynQuest, Inc.
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Mr. Xxxx Xxxxxxx
With a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
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If and when included within the term "Tenant," as used in this instrument, there
are more than one person, firm or corporation, all shall jointly arrange among
themselves for their joint execution of a notice specifying some individual at
some specific address within the continental United States for the receipt of
notices and payments to Tenant. All parties included within the term "Tenant"
shall be bound by notices given in accordance with the provisions of this
paragraph to the same effect as if each had received such notice.
27. HAZARDOUS SUBSTANCES.
(a) Tenant covenants that, without first obtaining
Landlord's written consent, neither Tenant nor any of its agents, employees,
contractors or invitees shall cause or permit any Hazardous Materials (as
hereinafter defined) to be stored, handled, treated, released or brought upon or
disposed of on the Premises, the Building or the Project, except for Hazardous
Materials customarily used in general business offices in first-class office
buildings, and then only in accordance with any and all applicable laws,
ordinances, rules, regulations and requirements respecting the storage,
handling, treatment, release, disposal, presence or use of such Hazardous
Materials. Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all claims, judgments, damages, penalties, fines, costs
(including without limitation, consultants' fees, experts' fees, attorneys' fees
and court costs), liabilities or losses resulting from the storage, handling,
treatment, release, disposal, or use of Hazardous Materials in, on or about the
Premises, the Building or the Project by Tenant, its agents, employees,
contractors or invitees from and after the date of this Lease. Tenant agrees to
take such steps as are necessary to remediate any Hazardous Materials for which
the Tenant is liable under the terms of this Paragraph 27(a) in the manner
required by law.
(b) Definition of Hazardous Materials. As used herein,
the term "Hazardous Materials" means asbestos, polychlorinated biphenyls, oil,
gasoline or other petroleum based liquids, any and all materials or substances
deemed hazardous or toxic or regulated by applicable laws, including, but not
limited to, substances defined as hazardous under the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.
ss.9601 et seq., the Resource Conservation and Response Act, as amended, 42
U.S.C. ss.6901 et seq. (or any state counterpart to the foregoing statutes) or
determined to present the unreasonable risk of injury to health or the
environment under the Toxic Substances Control Act, as amended, 15 U.S.C.
ss.2601 et seq.
(c) Landlord hereby agrees that it shall not cause any
Hazardous Materials to be released, generated, placed, held, located, stored,
used or disposed of, in the Land, the Building or the Premises or any part
thereof, in a manner or quantity prohibited by federal or State of Georgia laws
or regulations at the time such materials are placed in the Land, the Building
or in the Premises. Landlord shall indemnify, defend and hold Tenant harmless
from and against any and all claims, judgments, damages, penalties, fines, costs
(including without limitation, consultants' fees, experts' fees, attorneys' fees
and court costs), liabilities or losses resulting from the storage, handling,
treatment, release, disposal, presence or use of Hazardous Materials in, on or
about the Premises or the Building or the Land in violation of such federal or
State of Georgia laws or regulations by Landlord, its agents, employees,
contractors or invitees. Landlord agrees to take such steps as are necessary to
remediate any Hazardous Materials governed by the terms of this Paragraph 27(c)
in the manner required by law.
(d) The provisions of this Paragraph 27 shall survive the
expiration or earlier termination of this Lease.
28. BROKERAGE.
(a) Tenant represents and warrants to Landlord that it
has not entered into any agreement with, or otherwise had any dealings with, any
broker or agent other than The Xxxxxx Company and The Xxxxxx Group, Inc.
(collectively, "Tenant's Agents") in connection with the negotiation,
procurement or execution of this Lease which could form the basis of any claim
by any such broker or agent for a brokerage fee or commission, finder's fee, or
any other compensation of any kind or nature in connection herewith, and Tenant
shall, and hereby agrees to, indemnify, defend and hold Landlord harmless from
all costs (including, but not limited to, court costs, investigation costs, and
attorneys' fees), expenses, or liability for commissions or other compensation
claimed by any broker or agent with respect to this Lease which arise out of any
agreement or dealings, or alleged agreement or dealings, between Tenant and any
such agent or broker other than Tenant's Agents.
(b) Landlord represents and warrants to Tenant that it
has not entered into any agreement with, or otherwise had any dealings with, any
broker or agent other than Xxxxxxx/Xxxxxxx Company ("Landlord's Agent") in
connection with the negotiation, procurement or execution of this Lease which
could form the basis of any claim by any such broker or agent for a brokerage
fee or commission, finder's fee, or any other compensation of any kind or nature
in connection herewith, and Landlord shall, and hereby agrees to, indemnify,
defend and hold Tenant harmless from all costs (including, but not limited to,
court costs, investigation costs, and attorneys' fees), expenses, or liability
for commissions or other compensation claimed by any broker or agent with
respect to this Lease which arise out of any agreement or dealings, or alleged
agreement or dealings, between Landlord and any such agent or broker other than
Landlord's Agent.
(c) Landlord shall pay a commission to Landlord's Agent
pursuant to a separate agreement between Landlord and Landlord's Agent. Landlord
shall pay a commission to Tenant's Agent pursuant to a separate agreement
between Landlord and Tenant's Agent. The fact that Landlord is paying a
commission to Tenant's Agent does not constitute Tenant's Agent as the agent of
Landlord or as a dual agent for Landlord and Tenant. Tenant's Agent has acted
solely as Tenant's agent in connection with this transaction.
(d) The provisions of this Paragraph 28 shall survive the
expiration or earlier termination of this Lease.
29. MISCELLANEOUS.
(a) Words of any gender used in this Lease shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise requires.
(b) The terms, provisions, covenants and conditions
contained in this Lease shall apply to, inure to the benefit of, and be binding
upon the parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly provided.
Landlord shall have the right to assign any of its rights and obligations under
this Lease to any mortgagee or to any purchaser of the Building. Each party
agrees to furnish to the other, promptly upon demand, a corporate resolution,
proof of due authorization by partners, or other appropriate documentation
evidencing the due authorization of such party to enter into this Lease.
(c) The captions inserted in this Lease are for
convenience only and in no way define, limit or otherwise describe the scope or
intent of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease.
(d) This Lease may not be altered, changed or amended
except by an instrument in writing signed by both parties hereto.
(e) All obligations of either party hereunder not fully
performed as of the expiration or earlier termination of the Term shall survive
the expiration or earlier termination of the Term, including without limitation
all payment obligations with respect to Rent and all obligations concerning the
condition of the Premises.
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(f) If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during the Term,
then and in that event it is the intention of the parties hereto that the
remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added as a
part of this Lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and
that is legal, valid and enforceable.
(g) All references in this Lease to "the date hereof" or
similar references shall be deemed to refer to the last date, in point of time,
on which all parties hereto have executed this Lease.
(h) Time is of the essence of this Lease and all of its
provisions.
(i) No animals (except service animals) shall be brought
into or kept in or about the Building.
(j) Tenant agrees to comply with subdivision regulations,
protective covenants, or other restrictions of record that are applicable to the
Building or Project and with respect to which Landlord has given Tenant written
copies prior to the execution of this Lease.
(k) Intentionally Omitted.
(l) This Lease shall create the relationship of Landlord
and Tenant between the parties hereto; no estate shall pass out of Landlord.
Tenant has only a usufruct, not subject to levy and sale, and not assignable by
Tenant except by Landlord's consent as specifically provided in Paragraph 11 of
this Lease.
(m) Notwithstanding anything contained elsewhere in this
Lease, Tenant shall have no claim, and hereby waives the right to any claim,
against Landlord for money damages by reason of any refusal, withholding or
delaying by Landlord of any consent, approval or statement of satisfaction
required of Landlord by this Lease or applicable law. In such event, Tenant's
only remedy for any refusal, withholding or delay which is determined to be
unreasonable or in contravention of this Lease or applicable law shall be an
action for specific performance or an injunction to enforce any such
requirement.
(n) Anything contained in this Lease to the contrary
notwithstanding, Tenant shall look solely to the estate and property of Landlord
in the Project, and to all insurance, condemnation, sale and other proceeds
derived from the Project, for the collection of any judgment or other judicial
process requiring the payment of money by Landlord for any default or breach by
Landlord under this Lease, subject, however, to the prior rights of any
mortgagee, the holder of any deed to secure debt or lessor of the Project. No
other assets of Landlord or any partners, shareholders, or other principals of
Landlord shall be subject to levy, execution or other judicial process for the
satisfaction of Tenant's claim.
(o) This Lease and the Exhibits and Riders attached
hereto set forth the entire agreement between the parties and cancel all prior
negotiations, arrangements, brochures, agreements, and understandings, if any,
between Landlord and Tenant regarding the subject matter of this Lease. Neither
this Lease, nor any memorandum hereof, shall be recorded by Tenant without
Landlord's prior written consent to such recording.
(p) This Lease shall be governed by and construed under
the internal laws of the State of Georgia, without regard to the conflicts of
laws rules of such state. Any action brought to enforce or interpret this Lease
shall be brought in the court of appropriate jurisdiction in Gwinnett County,
Georgia. Should any provision of this Lease require judicial interpretation,
Landlord and Tenant hereby agree and stipulate that the court interpreting or
considering same shall not apply the presumption that the terms hereof shall be
more strictly construed against a party by reason of any rule or conclusion that
a document should be construed more strictly against the party who itself or
through its agent prepared the same, it being agreed that all parties hereto
have participated in the preparation of this Lease and that each party had full
opportunity to consult legal counsel of its choice before the execution of this
Lease.
(q) No Event of Default or provision of this Lease shall
be deemed to have been waived by Landlord unless such waiver is in writing and
signed by Landlord. Landlord's acceptance of Rent following an Event of Default
hereunder, or acceptance of less than the full amount due (even if Tenant writes
the words "accord and satisfaction" or words of similar import on its check)
shall not be construed as a waiver of such Event of Default, nor excuse any
delay or partial payment upon subsequent occasions. No custom or practice which
may develop between the parties in connection with the terms of this Lease shall
be construed to waive or lessen Landlord's right to insist upon strict
performance of the terms of this Lease, without a written notice thereof to
Tenant.
(r) In any action or proceeding brought by Landlord
against Tenant under this Lease for the collection of any Rent or other
indebtedness under this Lease, Landlord shall be entitled to recover from Tenant
its reasonable attorneys' fees and court costs in such action or proceeding. In
any other action or proceeding between Landlord and Tenant, the prevailing party
shall be entitled to recover all of its costs and expenses in connection
therewith, including, but not limited to, reasonable attorneys' fees actually
incurred. Notwithstanding anything contained herein to the contrary, if under
any circumstances Landlord or Tenant is required hereunder to pay any or all of
the other's attorneys' fees and expenses (or "reasonable attorneys' fees", or
"attorneys' fees incurred", or other similar obligations), the paying party
shall be responsible only for actual legal fees and out of pocket expenses
incurred at normal hourly rates for the work done. The paying party shall not be
liable under any circumstances for any additional attorneys' fees or expenses
under O.C.G.A. 13-1-11 or otherwise, and, to the extent Landlord and Tenant may
be permitted to charge or receive additional attorneys' fees or expenses under
O.C.G.A. 13-1-11, each of them hereby waives such right.
(s) Except as otherwise provided herein, Landlord shall
not be liable to Tenant for failure to give possession of any portion of the
Premises to Tenant if Landlord is delayed in commencing construction on such
portion of the Premises by reason of the unlawful holding over or retention of
possession of any previous tenant, tenants or occupants of such portion of the
Premises, nor shall such failure impair the validity of this Lease. However,
Landlord does agree to use reasonable diligence to obtain possession of each
portion of the Premises in a timely manner so that construction within such
portion of the Premises shall not be delayed.
(t) Intentionally Omitted.
(u) Whenever a period of time is herein prescribed for
action to be taken by Landlord, Landlord shall not be liable or responsible for,
and there shall be excluded from the computation for any such period of time,
any delays due to force majeure, which term shall include strikes, riots, acts
of God, war, or governmental laws, regulations and restrictions, or any other
cause of any kind whatsoever which is beyond the reasonable control of Landlord,
other than lack of funds by Landlord.
(v) Neither Landlord nor Landlord's agents or brokers
have made any representations or promises with respect to the Premises, the
Building, the Land, or any other portions of the Project except as herein
expressly set forth and all reliance with respect to any representations or
promises is based solely on those contained herein. No rights, easements, or
licenses are acquired by Tenant under this Lease by implication or otherwise
except as, and unless, expressly set forth in this Lease.
(w) The submission of this Lease to Tenant shall not be
construed as an offer and Tenant shall not have any rights with respect thereto
unless Landlord executes a copy of this Lease and delivers the same to Tenant.
When this Lease has been executed by Tenant and delivered to Landlord, this
Lease shall constitute an offer to Landlord to lease the Premises on the terms
and conditions herein described.
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(x) Any elimination or shutting off of light, air, or
view by any structure which may be erected on lands adjacent to the Building
shall in no way affect this Lease and Landlord shall have no liability to Tenant
with respect thereto.
30. ADDITIONAL PROVISIONS. See Additional Provisions Paragraphs 31
through 41 attached hereto and made a part hereof as if fully incorporated
herein and when in conflict with the body of this Lease, said Additional
Provisions shall prevail.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed in their names on their behalf and their seals affixed hereto by duly
authorized officials, the day and year respectively set forth below.
EXECUTED BY LANDLORD, this 12 day of January, 2000.
Witness ACQUIPORT PEACHTREE RIDGE, INC.,
a Delaware corporation
/s/ Xxxxx Signoril By: /s/ Xxxxx Xxxxxxx
----------------------- ------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------
Title: Vice President
------------------------------
EXECUTED BY TENANT, this 10 day of January, 2000.
Witness
SYNQUEST, INC.,
a Georgia corporation
/s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxxx
----------------------- ------------------------------------
Name: Xxxx Xxxxxxx
-------------------------------
Title: Executive VP Fin. & Adm.
------------------------------
(CORPORATE SEAL)
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ADDITIONAL PROVISIONS
ATTACHED TO AND INCORPORATED IN LEASE AGREEMENT BETWEEN ACQUIPORT PEACHTREE
RIDGE, INC., A DELAWARE CORPORATION ("LANDLORD") AND SYNQUEST, INC., A GEORGIA
CORPORATION ("TENANT").
31. IMPROVEMENT ALLOWANCE. Landlord shall provide Tenant an
"Improvement Allowance" (as defined in the Work Letter) of up to $15.25 per
square foot of Net Rentable Area in the original Premises ($281,393.00 total),
to be computed, expended and applied in accordance with the Work Letter attached
hereto as Exhibit "C." Any portion of the Improvement Allowance remaining
undisbursed as of December 31, 2001 shall belong to Landlord.
32. AMORTIZED EXCESS CONSTRUCTION COSTS.
(a) Landlord shall construct the Leasehold Improvements
(as defined in the Work Letter) and pay the cost thereof up to the amount of the
Improvement Allowance. In the event that the costs of the Leasehold Improvements
exceed the Improvement Allowance, then the entire amount of such excess
(hereinafter referred to as the "Excess") shall be Tenant's sole liability and
responsibility. Within five (5) Business Days after the approval of the bid for
Leasehold Improvements, as set forth in the Work Letter, Tenant shall notify
Landlord in writing as to whether or not Tenant elects to have Landlord pay up
to an additional $3.00 per square foot of Net Rentable Area of the Premises
($55,356.00 total) of the Excess (the "Potentially Amortized Costs"). If Tenant
elects to have Landlord amortize the Potentially Amortized Costs as set forth in
this Paragraph 32, the Potentially Amortized Costs shall be deducted from the
amounts payable by Tenant under Section 2.03 of the Work Letter and shall be
repaid by Tenant as set forth below in this Paragraph 32. If Tenant elects not
to have the Potentially Amortized Costs amortized as set forth in this Paragraph
32, or fails to provide notice of its election within such five (5) Business Day
period, Tenant shall be deemed to have waived its right to have such Potentially
Amortized Costs amortized as set forth in this Paragraph 32. In such event, the
amount of the Potentially Amortized Costs shall not be deducted from the amounts
payable by Tenant under Section 2.03 of the Work Letter.
(b) If Tenant elects to have the Potentially Amortized
Costs amortized by Landlord, the Potentially Amortized Costs shall be amortized
over the initial Term of the Lease, as follows:
The outstanding balance of the Potentially Amortized Costs shall bear
interest at the rate of eleven percent (11%) simple interest per annum
from the date of Substantial Completion until such sum is paid in full,
and a sum equal to the amount of principal and interest necessary to
fully amortize the Potentially Amortized Costs over the Term of the
Lease in equal monthly installments shall be added to Tenant's
liability for the payment of rent due under the Lease (hereinafter
referred to as "Additional Monthly Payments"), and the Additional
Monthly Payments shall constitute Additional Rent due under the Lease.
After completion of the Leasehold Improvements, Landlord shall
calculate the amount of the Potentially Amortized Costs and the amount
of Tenant's Additional Monthly Payments and shall provide Tenant
written notice of the results of such calculations. Tenant agrees, if
requested by Landlord, to execute an amendment to the Lease setting
forth the amount of the Additional Monthly Payments. Failure to pay the
Additional Monthly Payments when due shall constitute an Event of
Default under the Lease.
33. RIGHT OF FIRST REFUSAL. Tenant shall have the continuing right
of first refusal ("First Refusal Right") to lease the space contiguous to the
Premises consisting of 5,693 square feet of Net Rentable Area, as shown on
Exhibit "E" attached hereto and by this reference made a part hereof (the
"Expansion Space").
(a) Tenant shall not be entitled to exercise a First
Refusal Right if, at the time of the exercise of the First Refusal Right, there
exists an uncured Event of Default by Tenant under this Lease.
(b) (i) If Landlord has a "bona fide" prospect (the
"Prospect") for all or part of the Expansion Space, Landlord shall
deliver written notice to Tenant (the "First Refusal Notice") of the
availability of such portion of the Expansion Space along with a copy
of the terms and conditions under which such Prospect proposes to lease
the Expansion Space and a statement from the Landlord that the terms
upon which the Prospect proposes to lease the Expansion Space are
materially acceptable to the Landlord. Landlord agrees to endeavor to
provide Tenant with notice of the initial proposal given to a Prospect.
The First Refusal Notice shall specify the approximate location and Net
Rentable Area of the portion of the Expansion Space which will be
offered to the Prospect. Such portion of the Expansion Space is
hereinafter referred to as the "Offered Space."
(ii) Tenant shall have five (5) Business Days
from its receipt of the First Refusal Notice to notify Landlord in
writing that Tenant desires to lease the Offered Space. If Tenant does
so exercise its First Refusal Right by notifying Landlord within such
five (5) Business Day period, the Offered Space shall be added to the
Premises in accordance with the provisions of this Paragraph 33. If
Tenant does not exercise such First Refusal Right or fails to notify
Landlord within such five (5) Business Day period of its election,
Landlord shall thereafter have the right to lease that portion of the
Expansion Space to any prospective tenant on any terms and conditions
[but subject to the requirements of Paragraph 34(i)(i) below], in
Landlord's sole discretion, for a period of three (3) months after the
expiration of such five (5) Business Day period. If Landlord does not
lease such portion of the Expansion Space within such three (3) month
period, such portion of the Expansion Space shall again be subject to
the terms and conditions of this First Refusal Right. Landlord may give
Tenant a First Refusal Notice with respect to a portion of the
Expansion Space as many times as Landlord chooses to do so.
(c) The "Offered Space Commencement Date" for space for
which Tenant has exercised a First Refusal Right shall be the later of: (i) the
date of Substantial Completion of the improvements to be made to the Offered
Space by Landlord; or (ii) the date for commencement set forth in the First
Refusal Notice.
(d) If Tenant exercises any First Refusal Right at a time
when the Offered Space Commencement Date will occur on or before the end of the
third (3rd) Lease Year, the Term, Base Rent and other economic terms of the
Lease for the Offered Space (except for the Improvement Allowance) shall be the
same as the Term, Base Rent (as such rate may be adjusted from time to time) and
economic terms in effect from time to time under the Lease.
(e) If Tenant exercises any First Refusal Right at a time
when the Offered Space Commencement Date will occur after the end of the third
(3rd) Lease Year, the Base Rent and other economic terms of the Lease for the
Offered Space (except for the Improvement Allowance) shall be the Base Rent (as
such rate may be adjusted from time to time), and economic terms in effect from
time to time under the Lease. The Term for such Offered Space will end on the
date determined under Paragraph 35 below.
(f) Whenever Tenant exercises its First Refusal Right,
Landlord shall provide Tenant a pro rata improvement allowance for the Offered
Space in an amount equal to $15.25 per square foot of Net Rentable Area in the
Offered Space multiplied by a fraction, the numerator of which is the number of
months remaining in the original six (6) year Term and the denominator of which
is seventy-two (72), to be computed, applied and expended in accordance with an
Offered Space Work Letter in substantially the form of the Work Letter attached
to this Lease as Exhibit "C." All other terms and conditions for the lease of
such Offered Space shall be those terms and conditions then in effect under the
Lease at the Offered Space Commencement Date.
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(g) After the Offered Space Commencement Date, such
Offered Space shall be added to and form a part of the Premises with the same
force and effect as if originally demised under this Lease, and the term
"Premises," as used in this Lease, shall include such Offered Space.
(h) If the Offered Space does not contain the entire
Expansion Space, Tenant's First Refusal Right under this Paragraph 33 shall
continue with respect to the remaining portion of the Expansion Space.
(i) Upon exercise of the First Refusal Right by Tenant,
and the determination of the Base Rent with respect thereto, Landlord and
Tenant, upon demand of either of them, shall enter into an amendment to the
Lease adding such Offered Space to the Premises, setting forth such Base Rent,
after the addition of such Offered Space to the Premises, and extending the Term
of this Lease as to the original Premises, if applicable; provided that failure
to enter into any such agreement shall not affect the terms of this Paragraph
33. If Tenant properly exercises a First Refusal Right but thereafter, for any
reason (except for delays caused by Landlord), does not enter into such
amendment to the Lease within thirty (30) days after its submission to Tenant by
Landlord, Landlord shall have the option, by written notice to Tenant, to elect
to cancel Tenant's exercise of its First Refusal Right, and, if Landlord so
elects, Landlord will be free to rent such Offered Space to any other
prospective tenant and the First Refusal Right granted to Tenant under this
Paragraph 33 shall immediately expire and be of no further force or effect and
Tenant shall have no further rights, and Landlord shall have no further
obligations, under this Paragraph 33.
(j) Except as set forth in this Paragraph 33, the leasing
of any Offered Space under this First Refusal Right shall be upon the same
terms, covenants, agreements, provisions and conditions of the Lease as are in
effect with respect to the original Premises, as defined in the Lease.
(k) Any termination, cancellation or surrender of the
Lease shall terminate any rights of Tenant pursuant to this Paragraph 33. This
First Refusal Right is provided to Tenant for the exclusive benefit of Tenant
and shall terminate upon the sublease of more than 25%, in the aggregate, of the
Net Rentable Area of the Premises or upon the assignment of the Lease. Tenant's
rights under this Paragraph 33 shall expire at the end of the fifth (5th) Lease
Year.
(l) Time shall be of the essence with respect to the
exercise by Tenant of its First Refusal Right under this Paragraph 33.
34. OPTION TO EXPAND. Tenant shall have the option (the "Expansion
Option"), but not the obligation, to lease all or, subject to the requirements
set forth below, one-half (1/2) of the Net Rentable Area of the Expansion Space
(reduced by any portion of the Expansion Space leased by Tenant pursuant to its
First Refusal Right) upon and subject to the following terms and conditions:
(a) If, at the time of exercise of such Expansion Option,
a portion of the Expansion Space which Tenant desires to lease is leased to one
or more other tenants (collectively, the "Adjacent Tenant"), Tenant shall be
entitled to exercise such Expansion Option only if Landlord successfully
negotiates and executes a satisfactory relocation agreement with the Adjacent
Tenant to relocate such Adjacent Tenant to another suite in the Building which
is substantially similar in size to the portion of the Expansion Space occupied
by the Adjacent Tenant. If Landlord is not able to negotiate and execute a
satisfactory relocation agreement with the Adjacent Tenant, then Tenant shall
not be entitled to exercise the Expansion Option unless, at that time, Landlord
has the right to terminate its lease with the Adjacent Tenant as described in
Paragraph 34(i) below. In addition, if at the time of exercise of such Expansion
Option any portion of the Expansion Space is leased to an Adjacent Tenant,
Tenant shall not be entitled to exercise the Expansion Option in a manner which
will require Landlord to relocate such Adjacent Tenant or to terminate its lease
with such Adjacent Tenant unless Tenant exercises such Expansion Option as to
all of the Expansion Space.
(b) Tenant shall not be entitled to exercise the
Expansion Option if, at the time of exercise of such Expansion Option, there
exists an uncured Event of Default by Tenant under this Lease.
(c) Tenant may exercise the Expansion Option by giving
written notice of its election to exercise the Expansion Option to Landlord at
any time before the expiration of the Expansion Option; provided that Tenant
must exercise the Expansion Option so that the "Expansion Space Commencement
Date" (as hereinafter defined) for the Expansion Space will occur on or before
the end of the fifth (5th) Lease Year. Tenant shall give written notice to
Landlord of its exercise of the Expansion Option at least nine (9) months prior
to the expected Expansion Space Commencement Date (to give Landlord time to
attempt to relocate the Adjacent Tenant, if any, or to exercise its right to
terminate the lease of the Adjacent Tenant, if any). Tenant shall have no right
to exercise the Expansion Option at a time which will result in the Expansion
Space Commencement Date occurring after the end of the fifth (5th) Lease Year.
If Tenant exercises the Expansion Option at least nine (9) months prior to the
end of the fifth (5th) Lease Year, this requirement will be deemed to have been
met. This Expansion Option shall expire and be of no further force and effect at
the end of the fifth (5th) Lease Year.
(d) The Term of this Lease with respect to the Expansion
Space shall commence on the Expansion Space Commencement Date and shall end on
the date determined under Paragraph 35 below. The Expansion Space Commencement
Date shall be the date of Substantial Completion of the Leasehold Improvements
to be constructed in the Expansion Space pursuant to Paragraph 34(h) below, but
not later than the first (1st) day of the sixth (6th) Lease Year.
(e) After the Expansion Space Commencement Date, the
Expansion Space shall be added to and form a part of the Premises with the same
force and effect as if originally demised under this Lease, and the term
"Premises," as used in this Lease, shall include the Expansion Space.
(f) Base Rent payable by Tenant for the Expansion Space
during the remainder of the Term [including any "Expansion Extension Term" (as
hereinafter defined)], but excluding any Extended Term under the Extension
Option provided in Paragraph 36] shall be the product of: (i) the per square
foot annual Base Rent payable by Tenant for the Premises under the Lease, as
such rate may be adjusted from time to time, multiplied by (ii) the Net Rentable
Area of the Expansion Space. The Base Rent payable by Tenant for the Expansion
Space for the Extended Term, if any, shall be determined in the same manner as
the Base Rent for the original Premises shall be determined.
(g) Landlord shall provide Tenant an improvement
allowance for the Expansion Space of up to $15.25 per square foot of Net
Rentable Area of the Expansion Space multiplied by a fraction, the numerator of
which is the number of months remaining in the Term as to the Expansion Space
and the denominator of which is seventy-two (72), to be computed, expended and
applied in accordance with an Expansion Space Work Letter in substantially the
form of the Work Letter attached to this Lease as Exhibit "C."
(h) If at the time of exercise of such Expansion Option,
the Expansion Space is leased to the Adjacent Tenant and Landlord successfully
negotiates and executes a satisfactory relocation agreement in accordance with
Paragraph 34(a) above, Tenant shall, subject to the limitations set forth
herein, reimburse Landlord for any and all costs incurred by Landlord associated
with the relocation of the Adjacent Tenant, including, but not limited to, the
expenses of preparing the new premises (the "Relocated Premises") to which the
Adjacent Tenant will be relocated with improvements and finishes substantially
similar to those utilized by the Adjacent Tenant in the Expansion Space, the
cost of moving the Adjacent Tenant, its property and equipment to the Relocated
Premises, the cost of business stationery and business cards for the Adjacent
Tenant and its employees with the new address, and all other costs actually
incurred by Landlord in connection with the relocation of the Adjacent Tenant.
Notwithstanding the foregoing, Tenant shall not be
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required to reimburse Landlord for any relocation fees or inducements which
Landlord may pay to the Adjacent Tenant which are not related to actual
out-of-pocket costs incurred by the Adjacent Tenant in relocating. In addition,
Tenant shall be required to reimburse Landlord for relocation costs only if the
Adjacent Tenant is relocated within the Building. In no event shall Tenant be
required to pay that portion of the expenses of preparing the Relocated Premises
which is attributable to any increase in the size of the Relocated Premises in
excess of the premises from which such Adjacent Tenant is being relocated. If
the relocation agreement between Landlord and the Adjacent Tenant provides for a
term which extends beyond the end of the term for the Adjacent Tenant's lease of
the Expansion Space, Tenant shall reimburse Landlord for only a pro rata portion
of the cost of the improvements to be made by Landlord in the Relocated
Premises. Tenant's portion of such improvement costs shall be equal to the total
of such improvement costs multiplied by a fraction, the numerator of which is
the number of months remaining in the term of the Adjacent Tenant's lease for
the Expansion Space, and the denominator of which is the total number of months
which will remain in such Adjacent Tenant's lease (including the extension) for
the Relocated Premises. Even if the relocation agreement between Landlord and
the Adjacent Tenant provides for an extended term, Tenant shall reimburse
Landlord for the entire cost of moving the Adjacent Tenant, its property and
equipment to the Relocated Premises, the cost of business stationery and
business cards for the Adjacent Tenant and its employees, and any other costs
actually paid by Landlord in connection with the relocation of the Adjacent
Tenant (other than improvement costs which shall be prorated, as set forth
above).
(i) (i) If Landlord leases the Expansion Space to
the Adjacent Tenant, Landlord shall include in the Adjacent Tenant's
lease a provision giving Landlord the option to terminate the Adjacent
Tenant's lease after a minimum term of two (2) years. Such termination
provision may require that Landlord give the Adjacent Tenant a minimum
of six (6) months prior written notice of its intention to terminate
the Adjacent Tenant's lease (the "Termination Notice"). Landlord also
agrees that in any lease to the Adjacent Tenant, Landlord shall not
provide an improvement allowance in excess of $15.25 per square foot of
Net Rentable Area.
(ii) If at the time Tenant exercises its
Expansion Option, the Expansion Space is leased to the Adjacent Tenant,
and Landlord is unable to successfully negotiate and execute a
satisfactory relocation agreement in accordance with Paragraph 34(a)
above, Landlord shall exercise its option to terminate the Adjacent
Tenant's lease by giving the required Termination Notice to the
Adjacent Tenant. Upon giving the Termination Notice to the Adjacent
Tenant, Landlord shall compute the "Termination Reimbursement" (as
hereinafter defined) and provide an invoice therefor to Tenant. Sums
due under such invoice shall constitute Additional Rent due under the
Lease. Should Landlord fail to provide such invoice, such failure shall
not relieve Tenant of the obligation to pay the Termination
Reimbursement. Tenant shall pay such invoice within thirty (30) days
after receipt thereof, and Tenant's failure to pay such invoice within
such thirty (30) day period shall constitute an Event of Default under
the Lease.
(iii) If Landlord gives the Termination Notice to
the Adjacent Tenant, Tenant shall reimburse Landlord for the following
costs associated with the termination of the Adjacent Tenant's lease
(the "Termination Reimbursement"). The Termination Reimbursement shall
be an amount equal to the unamortized amounts (calculated as set forth
below) (the "Unamortized Up-Front Costs") remaining unpaid as of the
date of termination of the Adjacent Tenant's lease of all sums paid by
Landlord under the Adjacent Tenant's lease for a tenant improvement
allowance, and leasing commissions to Landlord's Agent and Tenant's
Agent (all such sums are collectively referred to as the "Up-Front
Costs").
(iv) The Unamortized Up-Front Costs shall be
calculated by amortizing such Up-Front Costs together with interest
thereon at eleven percent (11%) per annum. The Unamortized Up-Front
Costs shall be the amount remaining outstanding on the date of
termination of the Adjacent Tenant's lease, if the total Up-Front Costs
were amortized, together, with interest thereon at the rate set forth
above, in equal monthly installments of principal and interest over the
Term of the Adjacent Tenant's lease. The date of termination of the
Adjacent Tenant's lease for the purpose of calculating the unamortized
Up-front Costs, shall be the date upon which the Adjacent Tenant is
obligated to vacate the Expansion Space.
(v) Landlord shall be under no obligation to
give the Termination Notice until such time as it is able to do so in
accordance with the terms of the Adjacent Tenant's lease. If, as a
result, of the terms of the Adjacent Tenant's lease, Landlord is unable
to terminate the Adjacent Tenant's lease on or before a date which will
allow the Commencement Date for the Expansion Space under this Lease to
occur on or before the end of the fifth (5th) Lease Year, Landlord
shall have no obligation to give the Termination Notice and Tenant
shall have no further rights under this Expansion Option.
(j) Upon exercise of Tenant's Expansion Option, and the
determination of the Base Rent with respect thereto, Landlord and Tenant, upon
demand of either of them, shall enter into an amendment to the Lease adding such
Expansion Space to the Premises, setting forth such Base Rent, after the
addition of such Expansion Space to the Premises; provided that failure to enter
into any such agreement shall not affect Tenant's obligation to pay Base Rent
for such Expansion Space. If Tenant properly exercises Tenant's Expansion
Option, but thereafter, for any reason (except for delays caused by Landlord),
does not enter into an amendment to the Lease adding such Expansion Space to the
Premises within thirty (30) days after its submission to Tenant by Landlord,
Landlord shall have the option, by written notice to Tenant, to elect to cancel
Tenant's exercise of its Expansion Option, and, if Landlord so elects, Landlord
will be free to leave the Adjacent Tenant, if any, in the Expansion Space or to
rent such Expansion Space to any other prospective tenant and the Expansion
Option granted to Tenant under this Paragraph 34 shall immediately expire and be
of no further force or effect and Tenant shall have no further rights, and
Landlord shall have no further obligations, under this Paragraph 34.
(k) Except as set forth in this Paragraph 34, the leasing
of the Expansion Space for the remainder of the Term shall be upon all the same
terms, covenants, agreements, provisions and conditions of the Lease as are in
effect as of the date immediately prior to the Expansion Space Commencement
Date.
(l) If Tenant does not exercise its Expansion Option in
accordance with this Xxxxxxxxx 00, Xxxxxxxx shall have the right to lease all or
any part of the Expansion Space (alone or in conjunction with any other space)
to any other prospective tenant or tenants for any length of term and such space
shall no longer be subject to the provisions of this Paragraph 34.
(m) Any termination, cancellation or surrender of the
Lease shall terminate any rights of Tenant under the Expansion Option granted in
this Paragraph 34. This Expansion Option is provided to Tenant for the exclusive
benefit of Tenant and shall terminate upon the sublease of more than twenty five
percent (25%), in the aggregate, of the Net Rentable Area of the Premises or
upon the assignment of the Lease.
(n) Tenant acknowledges that Landlord's ability to
relocate the Adjacent Tenant will depend upon the availability of suitable
premises elsewhere in the Building. If such suitable premises are not available,
Landlord shall be under no obligation to relocate the Adjacent Tenant, and
Tenant shall have no right to exercise its Expansion Option, unless Landlord is
able to terminate the lease of the Adjacent Tenant under Paragraph 34(i) above.
(o) Time shall be of the essence with respect to the
exercise by Tenant of its rights under the Expansion Option granted in this
Paragraph 34.
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35. EXPANSION EXTENSION TERM.
(a) If Tenant exercises its First Refusal Right at a time
when the Offered Space Commencement Date will occur on or before the end of the
third (3rd) Lease Year, the Term for the Lease of the Offered Space will be
coterminous with the original Term of the Lease.
(b) If Tenant exercises its Expansion Option at a time
when the Expansion Space Commencement Date will occur on or before the end of
the third (3rd) Lease Year, the Term for the Lease of the Expansion Space will
be coterminous with the original Term of the Lease.
(c) Landlord and Tenant have agreed that any leasing by
Tenant of any portion of the Expansion Space, whether by exercise of a First
Refusal Right or an Expansion Option, shall be for a minimum term of three (3)
years. Since Tenant is allowed to exercise the Expansion Option and the First
Refusal Right at any time when the Expansion Space Commencement Date, or the
Offered Space Commencement Date, as the case may be, will occur on or before the
end of the fifth (5th) Lease Year, the term of the Lease of such portion of the
Expansion Space could extend for up to two (2) years beyond the original Lease
Expiration Date set forth in Paragraph 1(h) of this Lease. In such event, the
parties have agreed that the Term of the Lease with respect to the original
Premises will be extended to be coterminous with the Term for the Expansion
Space, as set forth in this Paragraph 35.
(d) If Tenant exercises any First Refusal Right or the
Expansion Option and, as a result the Term of the Lease is extended as set forth
in this Paragraph 35, the period of time between the original Lease Expiration
Date specified in Paragraph 1(h) of the Lease and the end of the Term, as so
extended, is hereinafter referred to as the "Expansion Extension Term."
(e) If Tenant has exercised a First Refusal Right for
less than all of the Expansion Space, which exercise has resulted in the
extension of the Lease for the Expansion Extension Term, and thereafter again
exercises a First Refusal Right or the Expansion Option, the Expansion Extension
Term shall be extended to provide a term of three (3) years from the Offered
Space Commencement Date for the last portion of the Expansion Space leased by
Tenant under the First Refusal Right, but not beyond the date which is two (2)
years after the original Lease Expiration Date, as specified in Paragraph 1(h)
of this Lease. In such event, the Term for the original Premises and all
previous Offered Space leased by Tenant shall also be extended through the end
of the Expansion Extension Term, as so extended.
(f) If Tenant exercises any First Refusal Right or the
Expansion Option and the term for such Expansion Space will not be coterminous
with the Term for the original Premises under this Lease, the Term of this Lease
with respect to the original Premises shall be automatically extended so that
the expiration of the Term of this Lease for the original Premises shall also
include the Expansion Extension Term. If an exercise by Tenant of a First
Refusal Right results in an extension of the Term of the Lease for the Expansion
Extension Term, Landlord shall have no obligation by reason of such extension of
the Term of the Lease as to the original Premises for the Expansion Extension
Term to furnish any improvement or refurbishment allowance with respect to the
original Premises. The Base Rent payable under this Lease for the entire
Premises leased under this Lease (including the original Premises and any
portion of the Expansion Space leased by Tenant under the First Refusal Right or
Expansion Option) during the Expansion Extension Term shall be as follows:
Annual Base Rent
Per Square Foot of
Lease Year Net Rentable Area
---------- ------------------
Seventh (7th) $24.04
Eighth (8th) $25.00
(g) (i) If the Lease is extended for the Expansion
Extension Term, beginning January 1, 2006, and continuing on the first day of
each month thereafter during the Expansion Extension Term, Tenant shall also pay
to Landlord, as Additional Rent, at the same time as the monthly installment of
Base Rent is paid, an amount equal to one-twelfth (1/12th) of Landlord's
estimate (as determined by Landlord in its sole discretion) of "Tenant's Share"
(as hereinafter defined) of any projected increase in "Taxes" (as hereinafter
defined) for the particular calendar year in excess of the "Tax Base" (as
hereinafter defined) (the "Estimated Tax Escalation Increase"). The Tax Base
shall be the actual Taxes experienced during calendar year 2005. If the Building
is not fully occupied during any calendar year, Landlord shall adjust those
Taxes which are affected by Building occupancy for such calendar year, or
portion thereof, as the case may be, to reflect an occupancy of not less than
ninety-five percent (95%) of the total Net Rentable Area of the Building. In
computing the Estimated Tax Escalation Increase for any particular calendar
year, Landlord shall take into account any prior increases in Tenant's Share of
Taxes. If during any calendar year the Estimated Tax Escalation Increase is less
than the Estimated Tax Escalation Increase for the previous year, such
Additional Rent payments attributable to the Estimated Tax Escalation Increase
to be paid by Tenant for the new calendar year shall be decreased accordingly;
provided, however, in no event will the Rent paid by Tenant hereunder ever be
less than the Base Rent. If, for any reason, Landlord has not provided Tenant
with the Estimated Tax Escalation Increase on or before the first day of any
year during the Expansion Extension Term after January 1, 2006, then, (x) until
the first day of the calendar month following the month in which Tenant is given
the Estimated Tax Escalation Increase, Tenant shall continue to pay to Landlord
on the first day of each calendar month the sum, if any, payable by Tenant under
this Paragraph for the month of December of the preceding year, and (y) on the
first day of the month following Tenant's receipt of Landlord's determination of
the Estimated Tax Escalation Increase, Tenant shall pay to Landlord an amount
equal to one-twelfth (1/12) of the Estimated Tax Escalation Increase as shown on
the estimate provided by Landlord, plus an amount equal to the remainder
obtained by subtracting the amount theretofore paid by Tenant pursuant to
subparagraph (x) from that amount obtained by multiplying the number of months
(exclusive of the month then at hand) occurring since the first day of such year
by Tenant's then-correct monthly share of the Estimated Tax Escalation Increase.
If such calculation proves that Tenant has overpaid, Landlord shall apply such
overpayment as a credit against Tenant's future payment obligations for
Additional Rent until such credit is depleted. The foregoing notwithstanding,
Landlord shall have the right from time to time during any year to notify Tenant
in writing of any change in Landlord's estimate of the Estimated Tax Escalation
Increase, in which event Tenant's payment of the Estimated Tax Escalation
Increase, as previously estimated, shall be adjusted to reflect the amount shown
in such notice and shall be effective and due from Tenant on the first day of
the month following Landlord's giving of such notice.
(ii) The term "Taxes" shall mean all taxes and
assessments and governmental charges whether federal, state, county or
municipal, and whether they be by taxing or management districts or authorities
presently taxing or by others, subsequently created or otherwise, and any other
taxes and assessments attributable to the Building and the Project (or their
operation), excluding, however, federal and state taxes on income (collectively,
"Taxes"); if the present method of taxation changes so that in lieu of the whole
or any part of any Taxes levied on the Project or Building, there is levied on
Landlord a capital tax directly on the rents received therefrom or a franchise
tax, assessment, or charge based, in whole or in part, upon such rents for the
Building, then all such taxes, assessments or charges, or the part thereof so
based, shall be deemed to be included within the term "Taxes" for the purposes
hereof.
(iii) Within nine (9) months after January 1,
2006, and each subsequent year during the Expansion Extension Term, or as soon
thereafter as is practicable, Landlord shall furnish Tenant with a statement of
the actual Taxes for the preceding year and the resulting, actual amount of
Tenant's Share of any increase in Taxes in excess of the Tax Base. Thereafter,
Landlord shall be entitled, if circumstances warrant, to issue one or more
revised, corrected or supplemental statements at any time and from time to time
following the issuance of the initial statement. Within ten (10) days after
Landlord's delivery of such statement,
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Tenant shall make a lump sum payment to Landlord in the amount, if any, by which
Tenant's Share of the increase in the Taxes for the preceding calendar year in
excess of the Tax Base, as shown on such Landlord's statement, exceeds the
aggregate of the monthly installments of Tenant's payments of the Estimated Tax
Escalation Increase paid during such preceding year. If Tenant's share of the
actual increase in Taxes, as shown on such Landlord's statement, is less than
the aggregate of the monthly installments of the Estimated Tax Escalation
Increase actually paid by Tenant during such preceding year, then Landlord shall
apply such amount to the next accruing installments of Additional Rent due from
Tenant, until fully credited to Tenant.
(iv) As used in this Paragraph 35 (g), "Tenant's
Share" shall equal a fraction, the numerator of which is the Net Rentable Area
of the Premises and the denominator of which is the Net Rentable Area of the
Building, subject to future adjustments in the case of any expansion of the
Premises.
36. OPTION TO EXTEND. Tenant shall have the option to extend the
Term of this Lease (the "Extension Option") with respect to the Premises for the
"Extended Term" (as hereinafter defined) upon and subject to the following terms
and conditions:
(a) Tenant shall not be entitled to exercise the
Extension Option if, at the time of the exercise of such Extension Option, there
exists an uncured Event of Default by Tenant under this Lease.
(b) Tenant has the option to extend the Term of this
Lease for one (1) extended term of five (5) years (the "Extended Term") by
giving written notice of its election to extend to Landlord no earlier than
fifteen (15) months and no later than twelve (12) months prior to the expiration
of the Term. The Extended Term shall commence immediately upon the expiration of
the Term (as the same may have been extended for the Expansion Extension Term,
if applicable). If Tenant does not give notice of its election to exercise the
Extension Option in a timely manner, the Tenant's rights with respect to the
Extended Term shall expire and Tenant shall be conclusively deemed to have
waived its right to any Extended Term.
(c) (i) Base Rent for the Premises for the Extended
Term shall be an amount equal to the "Fair Market Value Base Rent" ( as
hereinafter defined) for the Premises for the Extended Term. Tenant acknowledges
that the method of escalating Base Rent and the lack of a requirement that
Tenant pay its share of increases in "Operating Expenses" (as defined in Exhibit
"G," attached hereto and by this reference made a part hereof) and "Taxes" (as
defined in Exhibit "G") for the original Term of the Lease (as the same may be
extended for the Expansion Extension Term) is a special concession to Tenant. If
Tenant exercises its Extension Option, Landlord may require other methods of
payment of Base Rent, escalation of Base Rent, payment of Operating Expenses and
Taxes and other economic terms, and the Landlord shall not be obligated to
continue the methods applicable for the original Term. If Tenant exercises its
Extension Option, Landlord shall notify Tenant of "Landlord's Determination" (as
hereinafter defined) as to whether or not Landlord is willing to continue to
escalate Rent in the same manner as set forth in this Lease for the original
Term (i.e. by escalating gross rent by a fixed percentage each year and not
utilizing a pass through of increases in Operating Expenses and Taxes or an
expense stop). In the alternative, Landlord may elect to escalate Base Rent for
the Extended Term on a fixed percentage or other basis and to require Tenant to
pay its pro rata share of increases in Operating Expenses over a base year. If
Landlord elects to require Tenant to pay its pro rata share of increases in
Operating Expenses during the Extended Term, the provisions of Exhibit "G"
attached hereto shall govern the calculation and payment of Tenant's pro rata
share of increases in Operating Expenses.
(ii) Within thirty (30) days after Landlord's
receipt of written notice of Tenant's election to exercise its Extension Option,
Landlord shall give Tenant a written notice setting forth Landlord's
determination, in its reasonable discretion, of the Fair Market Value Base Rent
of the Premises for the Extended Term and the method Landlord has chosen under
Paragraph 36(c)(i) above for calculating and escalating Rent ("Landlord's
Determination").
(iii) If Tenant rejects Landlord's Determination,
Landlord and Tenant shall negotiate in good faith in an attempt to reach
agreement as to the Fair Market Value Base Rent. The escalation method chosen by
Landlord under Paragraph 36(c)(i) above shall be binding on Tenant and Landlord
shall not be required to negotiate that determination. If Landlord and Tenant
are not able to agree as to the Fair Market Value Base Rent within sixty (60)
days after Landlord's notice to Tenant of Landlord's Determination (the
"Negotiation Period"), Fair Market Value Base Rent for the Extended Term shall
be determined by arbitration as set forth in Paragraph 36 (j) below.
Notwithstanding anything to the contrary, in the event the determination of Fair
Market Value Base Rent is submitted to arbitration, Landlord and Tenant shall be
bound by such determination, and Tenant shall not be entitled to revoke its
exercise of the Extension Option after submission of such determination to
arbitration.
(d) For the purposes of this Paragraph 36, the phrase
"Fair Market Value Base Rent" shall mean: the fair market rental which a tenant
would pay upon leasing space similar to the space in question in the Building,
or if no comparable space is available in the Building, in buildings of
comparable quality within a ten (10) mile radius of the Building ("Comparable
Buildings"), taking into consideration that Tenant is exercising a right to
extend the Term, and all other relevant factors, including, without limitation:
(i) the aggregate number of square feet of Net Rentable Area then leased by
Tenant in the Building; (ii) the length of the lease in question; (iii) the
market improvement allowances (which shall be paid by Landlord to Tenant); (iv)
any increases or decreases in Base Rent over the Extended Term that are then
being included in comparable leases, including adjustments made annually, or on
some other periodic basis, or based on changes in consumer price, cost of
living, or similar indexes or periodic market adjustments; (v) any tenant
concessions then being included (or not included) in comparable leases; (vi) the
location and quality of the Project; (vii) the credit standing of Tenant; (viii)
the method of payment of taxes and operating expenses by the tenant under
comparable leases; (ix) changes in measurement standards for the office space in
question; and (x) differences in building rules and regulations between the
building and such Comparable Buildings.
(e) Landlord shall have no obligation to make any
improvements, decorations or alterations to the Premises, other than Landlord's
existing obligations under the Lease and to provide Tenant with the market
allowance included in the Fair Market Value Base Rent determination, and Tenant
shall accept the Premises in their then current "as-is" condition as of the
commencement of the Extended Term.
(f) If Landlord so elects, as set forth in Paragraph
36(c)(i) above, the Fair Market Value Base Rent shall reflect the net or base
rent, and assume payment, in addition to payments of such Fair Market Value Base
Rent, of Tenant's share of any increase in Operating Expenses and Taxes over a
base year, and all other Additional Rent described in the Lease with respect to
the full Premises. Conversely, if Landlord so elects, Fair Market Value Base
Rent shall be determined as a gross rent without the payment of expense pass
throughs.
(g) Upon the determination of the Fair Market Value Base
Rent for the Extended Term, Landlord and Tenant, upon the demand of either of
them, shall enter into a supplementary agreement or amendment to the Lease to
set forth such Fair Market Value Base Rent, the Extended Term and the Lease
Expiration Date for such Extended Term, provided that failure to enter into any
such agreement shall not affect Tenant's obligation to pay Fair Market Value
Base Rent or, if applicable, Tenant's share of increases in Operating Expenses
for the Extended Term as determined pursuant to this Paragraph.
(h) Except as set forth in this Paragraph 36, the leasing
of the Premises for the Extended Term shall be upon the same terms, covenants,
agreements, provisions and conditions of the Lease as are in effect as of the
date immediately prior to the commencement of such Extended Term. Tenant shall
have no option to renew or extend this Lease beyond the expiration of the
Extended Term.
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(i) Any termination, cancellation or surrender of this
Lease shall terminate the Extension Option with respect to the portion of the
Premises for which this Lease is terminated, canceled or surrendered. The
Extension Option provided to Tenant herein is for the exclusive benefit of
Tenant and shall terminate upon the sublease of more than 25%, in the aggregate,
of the Net Rentable Area of the Premises or upon the assignment of the Lease.
(j) If Landlord and Tenant are unable to reach agreement
on the Fair Market Value Base Rent within the Negotiation Period, then Fair
Market Value Base Rent shall be determined in accordance with the procedures set
forth in this Paragraph 36(j) [the determination of Fair Market Value Base Rent
by any arbitrator shall be based on the factors set forth in this Paragraph
36(j)]:
(i) Within thirty (30) days after the end of the
Negotiation Period, Landlord and Tenant shall each deliver to the other a
written appointment of an arbitrator and an estimate of Fair Market Value Base
Rent submitted by such arbitrator. If either party fails to so deliver its
appointment and estimate within such time period, time being of the essence with
respect thereto, such party shall be deemed to have irrevocably waived its right
to deliver such estimate and the arbitrator appointed by the other party,
without holding a hearing, shall accept the estimate of the submitting party as
the Fair Market Value Base Rent.
(ii) Each arbitrator so appointed shall be a
disinterested party, engaged in appraising commercial office space in the
Peachtree Corners area of Gwinnett County, Georgia (the "Submarket"), either as
a M.A.I. appraiser, or a licensed commercial real estate broker, who shall be
currently active and engaged in rendering appraisals or leasing commercial
office space in the Submarket, and shall have been continuously so engaged for
at least ten (10) years prior to his or her selection.
(iii) Within five (5) days after such estimates
have been exchanged, the two arbitrators shall meet and attempt to reach
agreement as to Fair Market Value Base Rent.
(iv) If the arbitrators are unable to reach
agreement within such five (5) day period, but the higher of the two estimates
does not exceed one hundred five percent (105%) of the lower estimate, the
mathematical average of the estimates submitted by the two arbitrators shall be
the Fair Market Value Base Rent as determined by the arbitration. In all other
cases, the two arbitrators shall, within ten (10) days after the aforementioned
five (5) day period, select a third arbitrator to resolve which one of the two
estimates of Fair Market Value Base Rent shall be used. The third arbitrator
must also have the qualifications set forth above. If the two arbitrators are
unable to agree upon the selection of the third arbitrator, then, within a
further period of fifteen (15) days after the aforementioned ten (10) day
period, each arbitrator shall submit to the Presiding Judge of the Superior
Court of Gwinnett County, Georgia, the names of two (2) persons such arbitrator
would accept as the third arbitrator and the Presiding Judge of the Superior
Court of Gwinnett County, Georgia shall appoint such third arbitrator from among
the list of the four (4) submitted candidates.
(v) Within ten (10) days after the selection of
the third arbitrator, such third arbitrator shall select from the two (2) Fair
Market Value Base Rent estimates of the initial arbitrators the one which he or
she considers most correct, and the Fair Market Value Base Rent so selected
shall be the award of the arbitrators. In no event shall the third arbitrator be
entitled to render a decision that the Fair Market Value Base Rent is an amount
other than one of the amounts specified by the two initial arbitrators as the
Fair Market Value Base Rent.
(vi) The arbitration decision, determined as
provided in this Paragraph 36(j), shall be conclusive and binding on the
parties, shall constitute an "award" by the arbitrators within the meaning of
applicable law and judgment may be entered thereon in any court of competent
jurisdiction.
(vii) This provision shall constitute a written
agreement by Landlord and Tenant to submit any dispute regarding the
determination of Fair Market Value Base Rent to arbitration.
(viii) If any arbitrator appointed hereunder shall
be unwilling or unable, for any reason, to serve, or continue to serve, a
replacement arbitrator shall be appointed in the same manner as the original
arbitrator.
(ix) Each party shall pay the fees and expenses
of the original arbitrator appointed by such party and the fees and expenses of
the third arbitrator, if any, shall be borne equally by the parties.
(x) The arbitration shall be conducted, to the
extent consistent with this Paragraph 36, in accordance with the then prevailing
rules of the American Arbitration Association (or any successor organization)
and in accordance with applicable Georgia law.
(xi) The arbitrators shall render their decision
and award in writing within the time periods set forth herein, and counterpart
copies thereof shall be delivered to each of the parties. In rendering such
decision and award, the arbitrators shall not add to, subtract from, or
otherwise modify the provisions of the Lease. The arbitrators will base this
determination of Fair Market Value Base Rent on the escalation method specified
by Landlord in Landlord's Determination. Judgment may be had on the decision and
award of the arbitrators so rendered in any court of competent jurisdiction.
(k) Time shall be of the essence with respect to the
exercise by Tenant of its rights under the Extension Option granted in this
Paragraph 36.
37. BUSINESS DAYS. The term "Business Day" means Mondays through
Fridays, exclusive of any holidays observed by the Building.
38. AFTER HOURS HVAC. If Tenant requires air-conditioning or
heating for hours or days in addition to the hours and days specified in
Paragraph 5 of this Lease, Landlord shall make reasonable efforts to provide
such additional service after reasonable, prior written request therefor from
Tenant, and Tenant shall reimburse Landlord for the cost of such additional
service, at the hourly rates established from time to time by Landlord for such
services. Such hourly rates shall be based upon Landlord's cost of providing
such services, and shall include a component for Landlord's overhead,
depreciation, maintenance and labor costs in providing such services. Such
hourly rates shall not increase by more than three percent (3%) per annum over
the hourly rate for the preceding calendar year. If any of Landlord's other
tenants served by the equipment providing such additional service to the
Premises request that Landlord simultaneously provide such service to such other
tenants, the cost of Landlord providing such additional and concurrent service
shall be prorated among all of Landlord's tenants requesting such service, on a
reasonable basis, as determined by Landlord. As of the date of this Lease,
Landlord's hourly charge for providing after-hours heating or air-conditioning
service is $40.00 per hour (or part thereof), but such rate is subject to change
from time to time based upon Landlord's actual costs (which may include the
components set forth above) in providing such after-hours service.
39. INTERRUPTION OF SERVICES. In the event of any failure to
furnish, or any stoppage of, the following specified services for a period in
excess of five (5) consecutive Business Days, and if: (a) such interruption is
restricted to the Building and is not a neighborhood blackout; (b) such failure
to furnish or stoppage is caused by the negligence or willful misconduct of
Landlord or by the failure of Landlord to commence and diligently pursue repairs
for which Landlord is responsible under this Lease; (c) results in the Premises
becoming untenantable; and (d) Tenant actually ceases to occupy the Premises as
a result thereof, Tenant shall be entitled to an abatement of Rent which shall
commence on the sixth (6th) Business Day (and shall not be retroactive) and
shall continue the remainder
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of the period of such failure to furnish or stoppage of such specified services.
As used in this Paragraph 39, the specified services are: electricity, heating,
ventilating and air conditioning, water and elevator service.
40. CONSENT TO ASSIGNMENT OR SUBLEASING. Notwithstanding the
provisions of Paragraph 11 of the Lease, Landlord shall not unreasonably
withhold its consent to an assignment of this Lease in its entirety or to any
subletting of the Premises, provided that:
(a) No Event of Default shall have occurred and be
continuing;
(b) The proposed subtenant or assignee shall have a
financial standing, be of a character, be engaged in a business, and propose to
use the Premises in a manner in keeping with Landlord's then-current standards
in such respects of tenancies in the Building;
(c) The character of the business to be conducted or the
proposed use of the Premises by the proposed subtenant or assignee shall not:
(i) be likely to increase Landlord's operating expenses beyond those which would
be incurred for use by Tenant or for use in accordance with the standards of use
of other tenancies in the Building; (ii) increase the burden on existing
cleaning services or elevators over the burden prior to such proposed subletting
or assignment; or (iii) violate any provision or restrictions herein or in any
other leases in the Project relating to the use or occupancy of the Premises;
(d) The subletting shall be expressly subject to all of
the terms, covenants, conditions and obligations on Tenant's part to be observed
and performed under this Lease and the further condition and restriction that
the sublease or this Lease shall not be assigned, encumbered or otherwise
transferred or the subleased premises further sublet by the subtenant in whole
or in part, or any part thereof suffered or permitted by the subtenant to be
used or occupied by others, without the prior written consent of Landlord in
each instance, which consent may be granted or denied by Landlord in its sole
discretion;
(e) Intentionally Omitted;
(f) Intentionally Omitted;
(g) Any assignee shall agree to assume all of the
obligations of Tenant under this Lease;
(h) The proposed subtenant or assignee shall not be a
federal, state or local government, or an agency or instrumentality thereof, nor
shall it be entitled, directly or indirectly, to diplomatic or sovereign
immunity; and
(i) The proposed subtenant or assignee shall be subject
to service of process in, and the jurisdiction of the courts of, the State of
Georgia.
The foregoing shall in no way limit Landlord's ability: (A) to withhold or delay
its consent for any other reason which is reasonable under the circumstances; or
(B) to terminate this Lease as to the portion of the Premises affected by such
proposed sublease or assignment, as permitted by Paragraph 11(c) of this Lease.
41. ASSIGNMENT OR SUBLEASE TO AFFILIATES. Notwithstanding the
provisions of Paragraph 11, Tenant shall have the right, upon ten (10) days'
prior written notice to Landlord, but without Landlord's consent, to: (a) sublet
all or part of the Premises to any related corporation or entity which controls
Tenant, is controlled by Tenant, or is under common control with Tenant; or (b)
to assign this Lease to a successor corporation into which or with which Tenant
is merged or consolidated or which acquired substantially all of Tenant's assets
and property; provided that: (x) any such assignee or sublessee must be of a
character and reputation, be engaged in a business, and propose to use the
Premises in a manner in keeping with Landlord's then-current standards in such
respect for tenancies in the Building; and (y) with respect to an assignment
under Subparagraph (b), such successor corporation shall assume all of the
obligations and liabilities of Tenant and shall have assets, capitalization and
net worth at least equal to the assets, capitalization and net worth of Tenant
as of the date of this Lease, as determined by generally accepted accounting
principles. Tenant shall provide in its notice to Landlord the information
reasonably required by Landlord to assess compliance with these terms. For the
purpose hereof, "control" shall mean ownership of not less than fifty percent
(50%) of all of the voting stock or legal and equitable interest in such
corporation or entity.
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