EXHIBIT 10.5
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (this "Amendment") is made and
entered into this 7th day of December, 1999, by and between MOUNT XXXXXX PLACE
PARTNERS, L.L.C., A Georgia limited liability company ("Landlord"), and INTERNET
SECURITY SYSTEMS, INC, a Georgia corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant executed and entered into that certain
Lease Agreement, dated November 8, 1999, regarding certain premises to be
constructed at Mount Xxxxxx Place in Xxxxxx County, Georgia (the "Lease"); and
WHEREAS, the parties now desire to amend the Lease as set forth herein.
NOW, THEREFORE, FOR TEN DOLLARS ($10.00) and other good and valuable
consideration in hand paid by Landlord to Tenant, the receipt and sufficiency of
which are hereby acknowledged by Tenant, the parties agree as follows:
1. The Lease shall be and is hereby modified and amended by restating
Special Stipulation 8 thereof in its entirety as follows:
"Subject to the terms, conditions and agreements set forth in this
Special Stipulation 8, Landlord shall pay to Tenant a portion of the
net cash flow (for purposes of this Special Stipulation 8, the term
"net cash flow" shall be defined as Landlord's actual cash flow from
Landlord's operation of the Building [after the Preferred Return, as
this term is defined below, has been paid in full to each of Landlord's
members] less Landlord's payment of expenses [including debt service]
in connection with Landlord's operation of the Building and less
Landlord's maintenance of reserves in connection with Landlord's
operation of the Building subject to the limitation that any loans from
Landlord's members to Landlord shall not bear interest at a rate in
excess of the Preferred Return otherwise payable to Landlord's members
from the operation of the Building), which payments by Landlord to
Tenant, the parties agree, shall constitute an expense of Landlord in
the operation of the Building (but which shall not constitute an
Operating Expense as set forth in Exhibit "E" and other applicable
provisions of this Lease) upon the following terms and conditions:
Unless otherwise approved by Tenant, Landlord's permanent financing for
the Building shall contain an amortization based upon a period of not
less than twenty-five (25) years. Landlord shall be entitled to
determine the payment of all operating expenses and the maintenance of
all reserves in connection with Landlord's operation of the Building.
Each of Landlord's members has contributed and/or will from time to
time contribute cash and/or other equivalent value associated with each
such member's investment in
its membership interests in Landlord, and otherwise as set forth in the
operating agreement of Landlord and the books and records of Landlord
maintained in connection therewith (hereinafter the respective
contributions by each of Landlord's members are referred to as "Cash
Invested"). For purposes of this Special Stipulation 8, the respective
amounts of the Cash Invested for each such member of Landlord shall not
be decreased in any respect whatsoever and shall be deemed to be
entitled to a twelve percent (12%) per annum preferred interest return
("Preferred Return") as further set forth in this Special Stipulation 8
and shall not be diminished by depreciation, return of capital, or any
other accounting event which might otherwise be deemed to decrease the
amount of Cash Invested or the capital account of any such member;
rather, the aggregate Cash Invested, as the same may be increased from
time to time, shall in no event ever be diminished for purposes of this
Special Stipulation 8. Each member of Landlord shall be entitled to the
Preferred Return on each such member's Cash Invested from and after the
respective times of each increment of such Cash Invested by such
member, and after each such member has received such member's total
current Preferred Return on any and all Cash Invested, then subject to
Landlord's payment of expenses in connection with the Building and the
maintenance of normal reserves, as determined by Landlord, the
remaining net cash flow shall on an annual basis within sixty (60) days
from the expiration of each calendar year, or more frequently if net
cash flow is distributed to the members of Landlord more frequently, be
divided as follows: Landlord shall pay as an expense of Landlord in its
operation of the Building to Tenant thirty percent (30%) of such net
cash flow with the remaining seventy percent (70%) of such net cash
flow to be distributed to Landlord's members contemporaneously with the
payment of such thirty percent (30%) of net cash flow to Tenant. Such
payment of thirty percent (30%) of net cash flow from Landlord to
Tenant shall continue only for the first eight and one-half (8 1/2)
years of the Term of this Lease and shall not continue thereafter. In
the event the Building is sold or refinanced during such eight and
one-half (8 1/2) years initial Term of this Lease, but not thereafter,
then after the Preferred Return is paid to Landlord's members, Tenant
shall be entitled to receive as an expense payment from Landlord to
Tenant thirty percent (30%) of the remaining net proceeds from any such
sale or refinancing (after payment in full of all outstanding security
deeds on the premises) with the remaining 70% to be distributed to
Landlord's members. At any and all times during all Term of this Lease,
Landlord shall be entitled to determine the financing of Landlord (both
temporary and permanent) in connection with its acquisition,
construction, and operation of the Building, subject only to the
restriction that permanent financing shall be based on an amortization
period of not less than twenty-five (25) years as set forth above in
this Special Stipulation 8, and further, Landlord shall determine
expenses to be paid in connection with the operation of the Building,
reserves to be maintained in connection therewith, and the terms of any
such sale or refinancing. In no event shall Tenant be entitled to any
payment of net cash flow or net proceeds from any sale or refinancing
or any other payment under this Special Stipulation 8 after the first
eight and one-half (8 1/2) years of the initial Term
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of this Lease (the "Tenant Participation Period"). Further, following
any sale of the Building from the initial landlord, Mount Xxxxxx Place
Partners, L.L.C., to a successor during the Tenant Participation
Period, provided that Tenant is paid thirty percent (30%) of the
remaining net proceeds from such sale as described above in this
Special Stipulation 8, then Tenant shall not be entitled to receive any
further payments from any successor landlord, and the provisions of
this Special Stipulation 8 shall, accordingly, only be binding upon the
initial landlord, Mount Xxxxxx Place Partners, L.L.C. during the Tenant
Participation Period. Notwithstanding the preceding sentence, in the
event the Term of this Lease is extended past eleven and one-half (11
1/2) years by a mutually acceptable written extension agreement between
Landlord and Tenant, which is executed and delivered during such Tenant
Participation period, then the Tenant Participation Period shall also
be extended by the same period as the extension term set forth in any
such written extension agreement; provided, however, that in ail
events, Tenant's rights to receive the portion of net cash flow from
operations and net proceeds from any sale or refinancing, as set forth
above in this Special Stipulation 8, shall cease upon the date when
three (3) years are left on the Term of this Lease. Accordingly, in no
event shall Tenant be entitled to any portion of net cash flow or net
proceeds from any sale or refinancing during the last three (3) years
of the Term of this Lease, and accordingly, the Tenant Participation
Period shall not be extended by any holdover by Tenant either pursuant
to Section 12 of this Lease or otherwise. However, in the event Tenant
extends the Term of this Lease pursuant to Special Stipulation 13 below
regarding Tenant's renewal of the Term of this Lease, then the Tenant
Participation Period shall be extended in the manner set forth above,
and if Tenant's rights to receive thirty percent (30%) of net cash flow
as set forth above have lapsed, then such rights shall be revived by
such extension of the Tenant Participation Period, except that all
lapsed payments due from Landlord to Tenant associated with such
extension shall be paid by Landlord to Tenant as an expense in
Landlord's operation of the Building (but which shall not constitute an
Operating Expense as set forth in Exhibit "E" and other applicable
provisions of this Lease) in the current year when such lapsed rights
to receive payments are revived by such extension. Except as set forth
in the preceding sentence, the Tenant Participation Period shall not be
extended for any other reason except only as set forth above in this
Special Stipulation 8. Landlord's obligations under this Special
Stipulation 8 shall not be binding upon the holder of any first lien
deed to secure debt encumbering the Premises who takes title to the
Premises through a foreclosure or acceptance of a deed in lieu thereof,
or upon any purchaser at a foreclosure sale pertinent thereto, or upon
any of their respective successors, successors-in-title and assigns who
likewise succeed to Landlord's or such holder's interest in the
Premises."
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2. The Lease shall be and is hereby modified and amended by restating
Special Stipulation 10 in its entirety as follows:
"On or before December 15, 1999 (with the form of the letter of credit
to be provided for Landlord's review and approval by December 10,
1999), Tenant shall deliver to Landlord an irrevocable standby letter
of credit as security for Tenant's performance under this Lease and to
compensate Landlord for landlord's expenses incurred in connection with
an event of default by Tenant hereunder (said letter of credit, and
each letter of credit substituted therefor as hereinafter provided,
being hereinafter referred to as the "Letter of Credit") issued in form
and substance and by an issuing banking institution acceptable to
Landlord, its successor-in-title and the holder of any first lien deed
to secure debt encumbering the Premises, containing, inter alia, the
following terms and conditions:
(i) the Letter of Credit shall provide for multiple draws;
(ii) Landlord, the holder of any first lien deed to secure debt
encumbering the Premises, or Landlord's successor-in-title to
the Premises shall be the beneficiary under the Letter of
Credit;
(iii) draws under the Letter of Credit shall be honored by the
issuing lending institution upon presentment by an authorized
representative of the beneficiary accompanied by (a)
beneficiary's sight draft, (b) a certification by the
beneficiary that Tenant has defaulted under this Lease and, as
a result of such default, Landlord is entitled to present the
Letter of Credit for payment, and (c) a certification by the
beneficiary that Landlord is entitled to payment of the sums
set forth as rental due under this Lease, together with a
certificate as to additional sums representing itemized costs
and expenses incurred by Landlord as a result of the default
by Tenant under this Lease and otherwise;
(iv) the term of the Letter of Credit shall be one (1) year from
the date of issuance thereof; and
(v) in the event the Letter of Credit has not been replaced by
Tenant with a substitute Letter of Credit in the amount set
forth below by five (5) business days prior to the expiring
date thereof, the beneficiary shall be entitled to present the
Letter of Credit for payment of the entire remaining
undisbursed balance thereof, accompanied solely by the
beneficiary's sight draft.
The first Letter of Credit shall be in the face amount of Ten Million
and No/100 Dollars ($10,000,000.00); each successive Letter of Credit
shall be in the face
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amount of One Million and No/100 Dollars ($1,000,000.00) less than the
Letter of Credit replaced by such successive Letter of Credit, until
the amount of the next successive Letter of Credit is $0.00 at which
time Landlord shall return the issued and outstanding Letter of Credit
and Tenant shall have no further obligation to cause the issuance of
additional Letters of Credit, except that the first successive Letter
of Credit shall also be in the face amount of $10,000,000.00. Except
for draws undertaken in connection with the mandatory non-renewal of
the Letter of Credit, draws under the Letter of Credit to pay rent and
other monies due Landlord under this Lease shall be deemed to cure any
such monetary defaults, unless the amount realized by the beneficiary
from any such draw are insufficient to pay in full the amount or
amounts due and owing Landlord under this Lease as a result of the
event of default by Tenant. Notwithstanding the foregoing, in the event
the Letter of Credit is drawn by reason of a default by Tenant in
payment of monies due to Landlord under the Lease and the amounts drawn
are used to cure such default as aforesaid, then within sixty (60) days
after such draw on the Letter of Credit, Tenant shall cause the Letter
of Credit to be increased to the amount of the Letter of Credit as
existed immediately prior to such draw. In the event Tenant does not do
so, then Tenant shall be in default under this Lease without any rights
of cure or reinstatement and Landlord shall be entitled to draw the
balance of the Letter of Credit in accordance herewith. For purposes of
this Lease, Tenant's default by failure to cause the Letter of Credit
to be increased as required in the preceding two sentences is herein
referred to as a "Draw Default".
In the event the beneficiary under the Letter of Credit receives a draw
of the entire amount available thereunder for any reason, and such
amount exceeds the actual amount due and owing or to be due and owing
to Landlord by Tenant as a result of the event of default with respect
to which the Letter of Credit was presented by the beneficiary for
payment (the "Excess Draw Amount"), Tenant shall receive a credit in
the amount of the Excess Draw Amount against Base Monthly Rental
payable by Tenant beginning with the last month (or portion thereof) of
the Term and continuing back from such last month through successive
prior calendar months during the Term until the Excess Draw Amount has
been credited in full."
3. Capitalized terms used in this Amendment shall have the same meanings
as defined in the Lease. Except as modified by this Amendment, the Lease shall
otherwise remain unmodified and in full force and effect. In the event of
conflict or inconsistency between the terms and conditions of the Lease and the
terms and conditions of this Amendment the terms and conditions of this
Amendment shall control and shall prevail.
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IN WITNESS WHEREOF, the parties through their duly authorized officers
and manager, respectively have executed this Amendment the date and year first
above written.
TENANT:
Signed, sealed and delivered INTERNET SECURITY SYSTEMS, INC.,
in the presence of: a Georgia Corporation
/s/ Xxxx X. Lechiel By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------- -----------------------------------
Notary Public or Witness Name: Xxxxxxx Xxxxxxx
--------------------------------
/s/ Xxxx X. Lechiel Title: CFO
--------------------------------------- -------------------------------
Name (Please Print)
Notary Public Xxxxxx County, Georgia Attest: /s/ [illegible]
My Commission Expires December 26, 2000 ------------------------------
Name:
--------------------------------
Title
--------------------------------
LANDLORD:
Signed, sealed and delivered MOUNT XXXXXX PLACE PARTNERS,
in the presence of: L.L.C., a Georgia limited liability
company
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxx
-------------------------------------- ----------------------------------
Notary Public or Witness Xxxx X. Xxxxxxx, Manager
Xxxxxxx X. Xxxxxx
--------------------------------------
Name (Please Print)
[Continued on following page]
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For Ten Dollars ($10.00) and other good and valuable consideration in hand paid
by Landlord to ISS Group, Inc., a Delaware corporation ("Guarantor"), the
receipt and sufficiency of which are hereby acknowledged by Guarantor, Guarantor
agrees that Guarantor's Guaranty Agreement of the Lease dated November 8, 1999
(the "Guaranty") shall remain in full force and effect and shall constitute a
Guaranty of the Lease as amended by this Amendment. Guarantor, through its duly
authorized officers, joins in the execution provisions of this Amendment for the
purpose of reaffirming its guaranty obligations of the Lease as amended by this
Amendment.
GUARANTOR:
Signed, sealed and delivered ISS GROUP, INC.
in the presence of: a Delaware Corporation
/s/ Xxxx X. Lechiel
------------------------------------- By: /s/ Xxxxxxx Xxxxxxx
Notary Public ----------------------------------
Name: Xxxxxxx Xxxxxxx
/s/ Xxxx X. Lechiel -----------------------------
------------------------------------- Title: CFO
Name (Please Print) ----------------------------
Notary Public, Xxxxxx County, Georgia Attest: /s/ Xxxxxxxxxxx Xxxx
My Commission Expires December 26, 2000 ------------------------------
Name: Xxxxxxxxxxx Xxxx
------------------------
Title: Secretary
------------------------
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SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT (the "Second Amendment") is
made and entered into as of this 27th day of November, 2000, by and between
MOUNT XXXXXX PLACE PARTNERS, LLC, a Georgia limited liability company
("Landlord"), and INTERNET SECURITY SYSTEMS, INC, a Georgia corporation
("Tenant").
WHEREAS, Landlord and Tenant executed and entered into that certain
Lease Agreement dated November 8, 1999, regarding certain premises to be
constructed at Mount Xxxxxx Place in Xxxxxx County, Georgia, as such Lease
Agreement was amended by First Amendment to Lease Agreement dated December 7,
1999 between Landlord and Tenant (as amended, the "Lease"); and
WHEREAS, Landlord and Tenant now desire to further amend the Lease as
set forth herein.
NOW THEREFORE, for and in consideration of Ten and No/100ths Dollars
($10.00) and for other good and valuable consideration in hand paid by Landlord
and Tenant, the receipt, adequacy and sufficiency of which is hereby
acknowledged by Tenant, the parties agree as follows:
1. The Lease is hereby amended by deleting Special Stipulation 5
in its entirety and by substituting in lieu thereof the following:
"The following represents the parties' agreements regarding
staged occupancy of the Premises and the payment of rental in
connection therewith: On the first initial Commencement Date (with an
initial target Commencement Date of November 1, 2000, as determined
pursuant to Special Stipulation 4 above). Tenant shall occupy and begin
paying rental for all five floors in the Phase I building (consisting
of 115,500 rentable square feet). Similarly, on the second target
Commencement Date of February 1, 2001, with the actual second target
Commencement Date being determined as set forth above in Special
Stipulation 4, Tenant shall begin paying rental for three (3) floors of
the Phase II building (which shall include the third (3rd) and fourth
(4th) floors of the Phase II Building and an additional floor of the
Phase II Building designated by Landlord), together with the two
bridges constructed by Landlord pursuant to Special Stipulation 14
above, consisting of a total of 76,900 rentable square feet (69,300
square feet for such three floors of the Phase II building, and 7,600
rentable square feet for such two bridges). Similarly, on the third
target Commencement Date of June 1, 2001, with the actual third target
Commencement Date being determined pursuant to Special Stipulation 4
above, Tenant shall begin paying rental for an additional floor of the
Phase II building designated by Landlord, consisting of 23,100 rentable
square feet. Similarly, on the fourth target Commencement Date of
December 1, 2001, with the actual fourth target Commencement Date being
determined pursuant to Special Stipulation 4 above, Tenant shall begin
paying rental for a remaining floor of the Phase II building,
consisting of 23,100 rentable square feet. Notwithstanding the
foregoing, during the periods from the occupancy of the various
portions of the Phase II Building until the targeted Commencement Dates
specified in Special Stipulation 5 of the Lease as existed prior to
this Second Amendment, then in accordance with Special Stipulation 29,
only one-half (1/2) of the Base Rental for such portions of the Phase
II Building shall be due during such periods. A schedule of Tenant's
rental obligations for the stated occupancy of the Premises, as set
forth in Special Stipulation 5, is set forth in Special Stipulation 17
below, subject to the assumption and terms and conditions set forth in
Special Stipulation 17 below. Tenant shall occupy the respective
portions of the Premises at the respective Commencement Dates as
determined pursuant to Special Stipulation 4 and Special Stipulation 5
of this Lease.
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2. Special Stipulation 16 hereby amended and modified by adding
the following language and chart to the conclusion of Special Stipulation 16:
"The following illustrative chart of Tenant's rental
obligations to Landlord for the periods specified reflects the
additional Base Rental owing to Lessor for periods from occupancy until
the targeted Commencement Dates of Special Stipulation 5 of the Lease,
as existed prior to this Second Amendment (at one-half (1/2) the full
rate as described above in Special Stipulation 5) assuming Lessee takes
occupancy of the Phase II Building on the targeted Commencement Dates
set forth in the Special Stipulation 5 of the Second Amendment:
ADDITIONAL RENTAL ONE-HALF (1/2) BASE AMOUNT OF ADDITIONAL MONTHLY BASE
MONTH SQUARE FEET RENTAL RATE RENTAL SUBJECT TO ABOVE ASSUMPTIONS
-------------------------------------------------------------------------------------------------------------
February, 2001 23,100 $10.53 $20,270.25
March, 2001 23,100 $10.53 $20,270.25
April, 2001 23,100 $10.53 $20,270.25
May, 2001 23,100 $10.53 $20,270.25
June, 2001 46,100 $10.53 $40,540.05
July, 2001 46,100 $10.53 $40,540.05
August, 2001 23,100 $10.53 $20,270.25
September, 2001 23,100 $10.53 $20,270.25
October, 2001 23,100 $10.53 $20,270.25
November, 2001 23,100 $10.79** $20,770.75
December, 2001 46,200 $10.79 $41,541.50
January, 2002 46,200 $10.79 $41,541.50
February, 2002 23,100 $10.79 $20,770.75
March, 2002 23,100 $10.79 $20,770,75
April, 2002 23,100 $10.79 $20,770.75
May, 2002 23,100 $10.79 $20,770.75
June, 2002 23,100 $10.79 $20,770.75
July, 2002 23,100 $10.79 $20,770.75
** Base Rental Rate increases as a result of 2-1/2% assumed increase in
Net Rental Rate.
The foregoing chart also does no ???
3. Capitalized terms used in this ???
4. Except as modified by this ???
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IN WITNESS WHEREOF, the parties, through their duly authorized officers
and manager, respectively, have executed this Amendment the day and year first
above written.
"TENANT":
Signed, sealed and delivered INTERNET SECURITY SYSTEMS, INC.,
in the presence of: Georgia corporation
/s/ Xxxx Xxxxx
------------------------------------- By: /s/ Xxxxxxx Xxxxxxx
Unofficial Witness ----------------------------------
Name: Xxxxxxx Xxxxxxx
/s/ Xxxx X. Lechiel --------------------------------
------------------------------------- Title: CFO
Notary Public -------------------------------
[NOTARIAL SEAL] Attest:
Notary Public, Xxxxxx County, Georgia By: /s/ Xxxx Xxxxx
My Commission Expires December 26, 2000 -------------------------------
Name: Xxxx Xxxxx
-------------------------------
Title: Secretary
-------------------------------
[CORPORATE SEAL]
"LANDLORD"
Signed, sealed and delivered MOUNT XXXXXX PLACE PARTNERS, LLC, a
in the presence of: Georgia limited liability company
/s/ Xxxx Xxxx
------------------------------------- By: /s/ Xxxx X. Xxxxxxx
Unofficial Witness ----------------------------------
Xxxx X. Xxxxxxx, Manager
/s/ Xxxxxxxx Xxxxxxxxxxx
------------------------------------- [CORPORATE SEAL]
Notary Public
Ny Commission expires July 14, 2002
[NOTARIAL SEAL]
Notary Public, Xxxxxx County, Georgia
My Commission Expires December 26, 2000
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For Ten and 00/100 Dollars ($10.00) and other good and valuable
consideration in hand paid by Landlord to ISS Group, Inc., a Delaware
corporation ("Guarantor"), the receipt and sufficiency of which are hereby
acknowledged by Guarantor, Guarantor agrees that Guarantor's Guaranty Agreement
of the Lease dated November 8, 1999 (the "Guaranty") shall remain in full force
and effect and shall constitute a Guaranty of the Lease, as amended by this
Amendment. Guarantor, through its duly authorized officers, join in the
execution provisions of this Amendment for the purpose of reaffirming its
guaranty obligations, as amended by this Amendment.
"GUARANTOR"
Signed, sealed and delivered N/K/A Internet Security Systems, Inc.
in the presence of: ISS GROUP, INC., a Delaware
corporation
/s/ Xxxx Xxxxx
------------------------------------- By: /s/ Xxxxxxx Xxxxxxx
Unofficial Witness ----------------------------------
Name: Xxxxxxx Xxxxxxx
/s/ Xxxx X. Lechiel --------------------------------
------------------------------------- Title: CFO
Notary Public -------------------------------
[NOTARIAL SEAL] ATTEST:
Notary Public, Xxxxxx County, Georgia
My Commission Expires December 26, 2000 By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
--------------------------------
Title: Assistant Secretary
-------------------------------
[CORPORATE SEAL]
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6/07/01
THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT (the "Amendment") is made and
entered into as of this ________ day of February, 2001, by and between MOUNT
XXXXXX PLACE PARTNERS, LLC, a Georgia limited liability company ("Landlord"),
and INTERNET SECURITY SYSTEMS, INC, a Georgia corporation ("Tenant").
WHEREAS, Landlord and Tenant executed and entered into that certain
Lease Agreement dated November 8, 1999, regarding certain premises to be
constructed at Mount Xxxxxx Place in Xxxxxx County, Georgia, as such Lease
Agreement was amended by First Amendment to Lease Agreement dated December 7,
1999 between Landlord and Tenant, and as such Lease Agreement was further
amended by Second Amendment to Lease dated November 27, 2000, (as amended, the
"Lease"); and
WHEREAS, Landlord and Tenant now desire to further amend the Lease as
set forth herein.
NOW THEREFORE, for and in consideration of Ten and No/100ths Dollars
($10.00) and for other good and valuable consideration in hand paid by Landlord
and Tenant, the receipt, adequacy and sufficiency of which is hereby
acknowledged by Tenant, the parties agree as follows:
2.
1. Landlord and Tenant acknowledge and agree that Exhibit "B" to the
Lease is amended and modified by adding to the existing Exhibit "B" describing
the "Land" under the Lease, the legal description attached hereto as Exhibit "A"
to this Amendment which is incorporated herein by this reference.
2. Landlord and Tenant agree that the Section 2 of the Lease is hereby
deleted and in lieu thereof, the following is substituted:
Landlord and Tenant acknowledge and agree that the
Commencement Date of the Lease occurred on November 18, 2000,
and that the term of the Lease shall extend to and expire on
May 31, 2013 (such term being hereinafter referred to as the
"Term"), except as otherwise provided herein. The expiration
date of the Term of this Lease of May 31, 2013 is also the
expiration date of the Term that certain Lease Agreement of
even date herewith, between Spring Creek Partners, LLC, as
Landlord, and Tenant, as Tenant (hereinafter referred to as
the "Building 3 Lease", with said Premises of the Building 3
Lease being referred to herein as "Building 3."). The
expiration of the Term of the Building 3 Lease is based on a
target Commencement Date under the Building 3 Lease of June 1,
2003. In the event the Commencement Date of the Building 3
Lease does not occur for any reason whatsoever, then the Term
of this Lease shall expire on May 17, 2012. In the event the
actual expiration date of the Term of the Building 3 Lease is
earlier or later than May 31, 2013, then the expiration date
of the Term of this Lease shall be revised in a parallel
manner and by an identical period of time such that the Term
of this Lease and the Term of the Building 3 Lease expire
concurrently. In such case Landlord and Tenant agree to
execute an amendment to this Lease acknowledging the revised
expiration date of the Term. The Base Monthly Rental under
this Lease shall be
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6/07/01
payable and continue to escalate two and one-half percent
(2-1/2%) per year during the entire Term of this Lease as
provided above, in the manner set forth in Section 6 of the
Lease, excepting that the Base Monthly Rental shall not be so
escalated and shall be maintained at the previously escalated
amount during the portion of the initial Term of the Lease
after May 17, 2012.
3. Special Stipulation 14 is hereby deleted in its entirety and
the following is substituted in lieu thereof:
"Landlord and Tenant acknowledge and agree that Landlord has
constructed 780 parking spaces as a part of the Premises as a
part of the construction of the Phase I Building and Phase II
Building and will construct the Additional Parking Level (as
defined below). Landlord agrees that all such parking spaces
including the Additional Parking Level, when built, shall be
available during the Term and any extensions or renewals
thereof for the sole use of Tenant at no charge, except that
the rights of Tenant to use the Additional Parking Level may
be terminated in the event of the occurrence of the Building 3
Lease Termination, as described below. All such spaces,
subject to the remaining terms and conditions of the Lease,
will be available twenty-four (24) hours per day, seven (7)
days per week, every day of the year."
4. This Lease is hereby amended by adding the following as
Special Stipulation 32 of the Lease:
"Tenant and Landlord acknowledge and agree that the
Premises is subject to the easements created under the Second
Amendment to Reciprocal Easement Agreement dated November 3,
1999 between Mt. Xxxxxx Place Partners, LLC and Spring Creek
Partners, LLC (hereinafter referred to as "Spring Creek")
recorded at Deed Book 28068, Page 268 Xxxxxx County, Georgia
Records (all referred to as the "Existing Easement Documents")
which are created for the adjacent tract owned by Spring Place
Partners, LLC and the 50,400 square foot of office
improvements to be constructed thereon and leased to Tenant
under the Building 3 Lease referenced above. Landlord and
Tenant acknowledge and agree that the location of the Access
Easement and Accessway as described and defined in the
Existing Easement Documents will need to be reconfigured
through amendments to the Existing Easement Documents to
reflect the current design of the Building and Building 3. In
addition, the amendments to the Existing Easement Documents
shall also include the easement and right in favor of Spring
Place to construct an additional level of parking spaces on
the existing parking deck of the Buildings, which shall
consist of 149 parking spaces (the "Additional Parking
Level"). As a part of such amendments to the Existing Easement
Documents, Spring Creek shall also grant to the Landlord a
non-exclusive easement for vehicular ingress and egress
through the accessway in the Building 3 Parking Deck to reach
Mount Xxxxxx Highway and the Landlord shall grant
non-exclusive easements to Spring Place for the benefit of
Building 3 to utilize all of the parking facilities being a
part of Buildings (hereinafter referred to as the "Buildings
l and 2 Parking Deck") including without limitation, the
Additional Parking Level being constructed by Landlord as
aforesaid as a part of the Buildings 1 and 2 Parking Deck and
shall also grant easements for the purpose of vehicular
ingress and egress to Xxxxxxxx Road through the access ways
which are a part of the Building 1 and 2 Parking Deck.
Landlord acknowledges and agrees that Tenant shall, as a part
of the rights granted and afforded to Tenant by Landlord under
this Lease, be entitled to use and exercise the easements
encumbering Building 3 granted and created for the benefit of
the Buildings as described above pursuant to amendments to the
Existing Easement Documents, except in the event of a
"Building 3 Lease Termination" as described below.
2
6/07/01
A Building 3 Lease Termination shall mean any voluntary
termination of the rights of the Tenant under the Building 3
Lease, whether due to voluntary agreement of Spring Creek and
Tenant or whether due to Tenant's default under the Building 3
Lease, or otherwise. In the event of a Building 3 Lease
Termination, the Landlord shall notify Tenant and (i) the
easement rights of Spring Creek to use the Building 1 and 2
Parking Deck shall be limited to the exclusive use of the
Additional Parking Level of the Building 1 and 2 Parking Deck
and Spring Creek shall have no right to use the balance of the
Buildings 1 and 2 Parking Deck; (ii) the rights of Tenant to
use the Additional Parking Level of the Buildings 1 and 2
Parking Deck shall terminate and Tenant shall be limited to
the exclusive use of the portions of the Building 1 and 2
Parking Deck other than the Additional Parking Level; (iii)
Landlord and Tenant shall cooperate with each other in order
that the Additional Parking Level is segregated from the
balance of the Buildings 1 and 2 parking Deck, with access
between such areas prohibited. All such amendments to the
Existing Easement Documents shall be executed by all parties
prior to August 1, 2001 and Landlord and Tenant shall
cooperate in execution of such amendments and execute any
necessary instruments to effectuate that foregoing, which
instruments shall be added to this Lease through amendments to
this Lease.
5. Landlord and Tenant acknowledge and agree that the Lease is
amended and modified by adding the following as Special Stipulation 33 of the
Lease:
Landlord agrees Tenant shall have the right to place one (1)
sign with fixed lettering on the exterior of the Building 1
and 2 Parking Deck identifying the name of Tenant's business
conducted in the Premises, subject to Landlord's approval as
to the design, nature, and method of attachment to the
Building 2 Parking Deck. Said sign shall be installed and
maintained at the sole cost of Tenant and in compliance with
all applicable governmental laws, regulations, and ordinances
and shall be removed at expiration or termination of the Term
of the Lease by Tenant and at the cost of Tenant and all
damage caused by such attachment and removed to the exterior
surface of the Building 1 and 2 Parking Deck shall be properly
repaired by Tenant.
10. Landlord acknowledges and agrees that the Tenant shall have
the following "Bridge Right" upon the specified terms and conditions. The
"Bridge Right" shall mean and refer to the right on the part of Tenant to
construct, operate maintain, repair, and use an elevated enclosed pedestrian
walkway reaching from the Phase II Building to Building 3 (the "Bridge")
provided that (i) the design of the Bridge and the method of connection and
attachment to the Phase II Building and Building 3, and the identity of the
contractor constructing the Bridge is subject to the prior approval of the
Landlord pursuant to submitted plans and specifications, which approval shall
not be unreasonably withheld; (ii) the construction, maintenance, operation and
repair of the Bridge shall be at the sole cost and expense of Tenant; and (iii)
the construction, use, and operation of the Bridge shall be in accordance with
all applicable governmental laws, ordinances, and regulations. In the event the
Tenant is not occupying all of Building 3 and all of the Phase II Building, then
Landlord shall have the right to remove the Bridge at the cost of Landlord, or
prevent use of the Bridge by closing the entrances to the Bridge. As a part of
the modification of the Existing Easement Documents referenced above, Landlord
shall enter into the necessary agreements with the "landlord" under the
Buildings 3 Lease to effectuate the foregoing.
6. Capitalized terms used in this Amendment shall have the same
meanings as defined in the Lease.
3
6/07/01
7. Except as modified by this Amendment, the Lease shall
otherwise remain unmodified and in full force and effect and the parties do
hereby ratify and confirm the terms thereof. In the event of conflict or
inconsistency between the terms and conditions of the Lease and the terms and
conditions of this Amendment, the terms of this Amendment shall control and
prevail and govern the rights, liabilities, and obligations of the parties.
IN WITNESS WHEREOF, the parties, through their duly authorized officers
and manager, respectively, have executed this Amendment the day and year first
above written.
"TENANT"
Signed, sealed and delivered INTERNET SECURITY SYSTEMS, INC, a
in the presence of: Georgia corporation
/s/ Xxxx Xxxx By: /s/ Xxxxxxx Xxxxxxx
------------------------------------- ----------------------------------
Unofficial Witness Name: Xxxxxxx Xxxxxxx
--------------------------------
/s/ Xxxxx X. Xxxxxxxxx Title: CFO
------------------------------------ -------------------------------
Notary Public
Attest:
[NOTARIAL SEAL]
By: /s/ Xxxx Xxxxx
XXXXX X. XXXXXXXXX ----------------------------------
Notary Public, DeKalb County, Georgia Name: Xxxx Xxxxx
My Commission Expires Sept. 7, 2002. --------------------------------
Title: Secretary
-------------------------------
[CORPORATE SEAL]
"LANDLORD"
Signed, sealed and delivered MOUNT XXXXXX PLACE PARTNERS, LLC, a
in the presence of: Georgia limited liability company
/s/ Xxxx Xxxx By: /s/ Xxxx X. Xxxxxxx
------------------------------------- ----------------------------------
Unofficial Witness Xxxx X. Xxxxxxx, Manager
/s/ Xxxxxxxx Xxxxxxxxxxx
------------------------------------- [Corporate Seal]
Notary Public
Commission expires July 14, 2002
[NOTARIAL SEAL]
4
For Ten and 00/100 Dollars ($10.00) and other good and valuable
consideration in hand paid by Landlord to Internet Security Systems, Inc., a
Delaware corporation, (successor by name change to ISS Group, Inc., a Delaware
corporation) a Delaware corporation ("Guarantor"), the receipt and sufficiency
of which are hereby acknowledged by Guarantor, Guarantor agrees that Guarantor's
Guaranty Agreement of the Lease dated November 8, 1999 (the "Guaranty") shall
remain in full force and effect and shall constitute a Guaranty of the Lease, as
amended by this Third Amendment to Lease Agreement. Guarantor, through its duly
authorized officers, join in the execution provisions of this Amendment for the
purpose of reaffirming its guaranty obligations, as amended by this Amendment.
"GUARANTOR"
Signed, sealed and delivered INTERNET SECURITY SYSTEMS, INC., a
in the presence of: Delaware corporation
/s/ Xxxx Xxxx By: /s/ Xxxxxxx Xxxxxxx
------------------------------------- ----------------------------------
Unofficial Witness Name: Xxxxxxx Xxxxxxx
--------------------------------
/s/ Xxxxx X. Xxxxxxxxx Title: CFO
------------------------------------- -------------------------------
Notary Public
[NOTARIAL SEAL] Attest:
Xxxxx X. Xxxxxxxxx
Notary Public, DeKalb County, Georgia By: /s/ Xxxx Xxxxx
My Commission Expires Sept. 7, 2002 ----------------------------------
Name: Xxxx Xxxxx
--------------------------------
Title: Assistant Secretary
-------------------------------
[CORPORATE SEAL]
5
EXHIBIT "A
ISS BUILDING 1&2 LEASE THIRD AMENDMENT
All that tract or parcel of land lying and being in Land Xxx 00, 00xx Xxxxxxxx,
Xxxxxx Xxxxxx, Xxxxxxx and being more particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point formed by the
intersection of the southerly right-of-way line of Mount Vemon Drive, (a 70 foot
right-of-way) with the easterly right-of-way line of Xxxxxxxx Road (a 70 foot
wide right of way), and said point being located south 52(degree)28'48" east a
distance of 4733.1 from Xxxxxx County Monument F451; from said point run thence
south 00(degree)06'00" east a distance of 154.59 feet along said right-of-way
line of Xxxxxxxx Road to a 1/2" RBF; running thence north 89(degree)53'30" east
a distance of 11.37 feet to a point; run thence north 89(degree)53'30" a
distance of 258.33 to the TRUE POINT OF BEGINNING; from said TRUE POINT OF
BEGINNING AS THUS established running thence north 89(degree)53'30" east a
distance of 70.59 feet to a point on the proposed Georgia 400 right-of-way;
running thence along said right of way in a southerly direction and along the
arc of a curve to the left (said curve having a radius of 6622.90 feet) (said
arc being subtended by a chord bearing south 03(degree)01'59" west with a length
of 67.09 feet) an arc distance of 67.09 feet to a point; running thence north
89(degree)53'00" east a distance of 66.92 feet to a point; running thence north
00(degree)06'00" west a distance of 67.00 feet to the TRUE POINT OF BEGINNING;
according to a plat of survey by Xxxxx X. Xxxxxxx, Georgia Registered Land
Surveyor #2802 entitled "Exhibit of Property at 0000 Xxxxxxxx Xxxx, prepared for
The Xxxxxxx Company" dated September 13, 2000; and containing 5606 square feet
or 0.099 acres.
Page 1 of 1
FOURTH AMENDMENT TO LEASE AGREEMENT
THIS FOURTH AMENDMENT TO LEASE AGREEMENT (the "Amendment") is made and
entered into as of this _________ day of August, 2001, by and between MOUNT
XXXXXX PLACE PARTNERS, LLC, a Georgia limited liability company ("Landlord"),
and INTERNET SECURITY SYSTEMS, INC, a Georgia corporation ("Tenant").
WHEREAS, Landlord and Tenant executed and entered into that certain
Lease Agreement dated November 8, 1999, regarding certain premises to be
constructed at Mount Xxxxxx Place in Xxxxxx County, Georgia, as such Lease
Agreement was amended by First Amendment to Lease Agreement dated December 7,
1999 between Landlord and Tenant, as such Lease Agreement was further amended by
Second Amendment to Lease dated November 27, 2000, and as such Lease Agreement
was further amended by Third Amendment to Lease dated June 8, 2001 (as amended,
the "Lease"); and
WHEREAS, Landlord and Tenant now desire to further amend the Lease as
set forth herein.
NOW THEREFORE, for and in consideration of Ten and No/l00ths Dollars
($10.00) and for other good and valuable consideration in hand paid by Landlord
and Tenant, the receipt, adequacy and sufficiency of which is hereby
acknowledged by Tenant, the parties agree as follows:
1. (a) Special Stipulation 5 of the Lease is hereby amended
and modified by deleting the date of "December 1, 2001" appearing in line 16 of
Special Stipulation 5 and by substituting in lieu thereof the date of "August 1,
2002".
(b) Special Stipulation 5 of the Lease is hereby amended
and modified by deleting the references to "Special Stipulation 17" appearing in
each of lines 25 and 26 and by substituting in lieu thereof in each instance
"Special Stipulation 16".
(c) Landlord and Tenant acknowledge that the "chart"
contained in Special Stipulation 16 of the Lease has not been revised to reflect
this Amendment to the Lease.
2. Capitalized terms used in this Amendment shall have the same
meanings as defined in the Lease.
3. Except as modified by this Amendment, the Lease shall
otherwise remain unmodified and in full force and effect and the parties do
hereby ratify and confirm the terms thereof. In the event of conflict or
inconsistency between the terms and conditions of the Lease and the terms and
conditions of this Amendment, the terms of this Amendment shall control and
prevail and govern the rights, liabilities, and obligations of the parties.
IN WITNESS WHEREOF, the parties, through their duly authorized officers
and manager, respectively, have executed this Amendment the day and year first
above written.
"TENANT"
Signed, sealed and delivered INTERNET SECURITY SYSTEMS, INC., a
in the presence of: Georgia corporation
------------------------------------- By:
Unofficial Witness ----------------------------------
Name:
------------------------------------- --------------------------------
Notary Public Title:
-------------------------------
[NOTARIAL SEAL] Attest:
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
[CORPORATE SEAL]
Signed, sealed and delivered "LANDLORD"
in the presence of:
MOUNT XXXXXX PLACE PARTNERS, LLC, a
------------------------------------- Georgia limited liability company
Unofficial Witness
By:
------------------------------------- -------------------------------------
Notary Public Xxxx X. Xxxxxxx, Manager
[CORPORATE SEAL]
[NOTARIAL SEAL]
For Ten and 00/100 Dollars ($10.00) and other good and valuable
consideration in hand paid by Landlord to Internet Security Systems, Inc., a
Delaware corporation, (successor by name change to ISS Group, Inc., a Delaware
corporation) a Delaware corporation ("Guarantor"), the receipt and sufficiency
of which are hereby acknowledged by Guarantor, Guarantor agrees that Guarantor's
Guaranty Agreement of the Lease dated November 8, 1999 (the "Guaranty") shall
remain in full force and effect and shall constitute a Guaranty of the Lease, as
amended by this Third Amendment to Lease Agreement. Guarantor, through its duly
authorized officers, join in the execution provisions of this Amendment for the
purpose of reaffirming its guaranty obligations, as amended by this Amendment.
"GUARANTOR"
Signed, sealed and delivered INTERNET SECURITY SYSTEMS, INC., a
in the presence of: Delaware corporation
------------------------------------- By:
Unofficial Witness ----------------------------------
Name:
------------------------------------- --------------------------------
Notary Public Title:
-------------------------------
[NOTARIAL SEAL] Attest:
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
[CORPORATE SEAL]
FIFTH AMENDMENT TO LEASE AGREEMENT
THIS FIFTH AMENDMENT TO LEASE AGREEMENT (the "Fifth Amendment") is made
and entered into as of this 1st day of July, 2002, by and between MOUNT XXXXXX
PLACE PARTNERS, LLC, a Georgia limited liability company ("Landlord"), and
INTERNET SECURITY SYSTEMS, INC., a Georgia corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant previously entered into that certain Lease
Agreement dated November 8, 1999 (the "Original Lease"), as amended by that
certain First Amendment to Lease Agreement between Landlord and Tenant dated
December 7, 1999 (the "First Amendment"), and as further amended by Second
Amendment to Lease Agreement between Landlord and Tenant dated as of November
27, 2000 (the "Second Amendment"), and as further amended by Third Amendment to
Lease Agreement between Landlord and Tenant dated as of February __, 2001, and
executed on June 8, 2001 (the "Third Amendment"), and as further amended by
Fourth Amendment to Lease Agreement between Landlord and Tenant dated as of
August 17, 2001 (the "Fourth Amendment"; the Original Lease, as previously
amended, is herein referred to as the "Lease"), pursuant to the terms of which
Tenant has leased those certain "Premises" (as defined in the Original Lease)
located in Xxxxxx County, Georgia; and
WHEREAS, Landlord and Tenant now desire to further modify and amend the
Lease as set forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and for other good and valuable consideration in hand paid by
each of the parties hereto to the other, the receipt, adequacy, and sufficiency
of which are hereby acknowledged, Landlord and Tenant do hereby covenant and
agree as follows:
1. Defined Terms. Terms used herein and denoted by their initial
capitalization shall have the meanings set forth in the Lease unless
specifically provided herein to the contrary.
2. Description of Land. The legal description of the Land
attached as Exhibit "B" to the Original Lease is hereby deleted and the legal
description of the Land attached as Exhibit "B" to this Fifth Amendment is
substituted in lieu thereof.
3. Commencement Date. Landlord and Tenant acknowledge and agree
that the Commencement Date under the Lease occurred on November 18, 2000.
Accordingly, the first Lease Year expired on November 30, 2001, and that the
second and each succeeding Lease Year shall commence on December 1 following the
expiration of the preceding Lease Year.
4. Size of Premises. Landlord and Tenant acknowledge, stipulate
and agree that the Premises are comprised of a total of 238,600 rentable square
feet determined in accordance with the Lease and that the foregoing stipulated
rental square foot area of the Premises shall be utilized for all purposes of
the Lease, including, without limitation, for the calculation of Base Monthly
Rental.
Landlord and Tenant further acknowledge, stipulate and agree that as
contemplated in Section 6 of this Fifth Amendment, as of the date of this Fifth
Amendment and continuing until July 31, 2002, Tenant is obligated to pay and
shall pay Base Monthly Rental calculated on the basis of 215,500 rentable
square feet of space within the Premises. Commencing on August 1, 2002, and
continuing thereafter throughout the remainder of the Term of the Lease, Tenant
shall be obligated to pay and shall pay Base Monthly Rental calculated on the
basis of the entire 238,600 rentable square feet contained within the Premises.
5. Base Monthly Rental. Landlord and Tenant acknowledge,
stipulate and agree that the Operating Expenses per square foot of the Premises
for the first twelve (12) months of the Term of the Lease were equal to or less
than $4.87 and accordingly, the Net Rental annual rate and the Base Monthly
Rental annual rate, assuming an annual escalation of two and one-half percent
(2 1/2%) per year in Net Rental occurs pursuant to Section 6 of the Original
Lease, are set forth in the illustrative chart below:
AMOUNT OF
BASE MONTHLY AMOUNT OF
RENTAL SUBJECT ANNUAL BASE
BASE TO RENTAL SUBJECT
MONTHLY ASSUMPTIONS TO ASSUMPTIONS
NET RENTAL REMAINING RENTAL SET FORTH SET FORTH
LEASE YEAR ANNUAL RATE RENTAL RATE ANNUAL RATE ABOVE ABOVE
---------------------------------------------------------------------------------------------------------------------
First Lease Year (11/18/00-11/30/01) $16.1800 $4.87 $21.0500 See Lease See Lease prior
prior to date to date hereof
hereof
---------------------------------------------------------------------------------------------------------------------
Second Lease Year (12/1/01-11/30/02) $16.5845 $4.87 $21.4545 $426,586.98(1) $5,119,043.70(1)
Third Lease Year (12/1/02-11/30/03) $16.9991 $4.87 $21.8691 $434,830.60 $5,217,967.26
Fourth Lease Year (12/1/03-11/30/04) $17.4241 $4.87 $22.2941 $443,281.02 $5,319,372.26
Fifth Lease Year (12/11/04-11/30/05) $17.8597 $4.87 $22.7297 $451,942.20 $5,423,306.42
Sixth Lease Year (12/1/05-11/30/06) $18.3062 $4.87 $23.1762 $460,820.11 $5,529,841.32
Seventh Lease Year (12/1/06-11/30/07) $18.7638 $4.87 $23.6338 $469,918.72 $5,639,024.68
Eighth Lease Year (12/1/07-11/30/08) $19.2329 $4.87 $24.1029 $479,246.00 $5,750,951.94
Ninth Lease Year (12/1/08-11/30/09) $19.7138 $4.87 $24.5838 $488,807.89 $5,865.694.68
Tenth Lease Year (12/1/09-11/30/10) $20.2066 $4.87 $25.0766 $498,606.40 $5,983.276.76
Eleventh Lease Year (12/1/10-11/30/11) $20.7118 $4.87 $25.5818 $508,651.46 $6,103,817.48
Twelfth Lease Year (12/1/11-11/30/12)(2) $21.2296 $4.87 $26.0996 $518,947.05 $6,227,364.56
Last Six Months (12/1/12-5/3 1/13)(2) $21.2296 $4.87 $26.0996 $518,947.05 $6,227,364.56
The foregoing chart does not take into account any Operating Expense
Differential or other amounts payable by, or reimbursable to, Tenant pursuant to
the Lease, including without limitation Sections 8, 14 and 17 and Special
Stipulation 31 of the Lease. The foregoing chart replaces and supersedes all
prior charts contained in the Lease with respect to all periods from and after
the date of this Fifth Amendment, but shall not affect the rent payable by
Tenant prior to the date hereof with respect to Tenant's staged occupancy of the
Premises.
----------------
(1) Based on Tenant's occupancy of 238,600 rentable square feet, commencing as
of August 1, 2002. See Sections 4 and 6 of this Fifth Amendment regarding
Tenant's occupancy and payment of Base Monthly Rental, as of the date hereof and
continuing through July 31, 2002, calculated on the basis of 215,500 rentable
square feet.
(2) Nothing contained in this illustrative chart is intended to modify the
expiration date of the Lease, which expiration date shall continue to be
governed by and subject to adjustment as provided in Section 2 of the Lease, as
replaced in the Third Amendment.
2
6. Actual Fourth Target Commencement Date. Landlord and Tenant
acknowledge, stipulate and agree that the fourth target Commencement Date for
the remaining (and final) floor of the Phase II Building, consisting of 23,100
rentable square feet on the fifth (5th) floor of the Phase II Building, is
August 1, 2002.
7. Operating Expenses of the Base Year. Landlord and Tenant
acknowledge, stipulate and agree that the Operating Expenses of the Base Year,
as adjusted and grossed up as provided in the Lease, including Section 8 and
Special Stipulation 30 thereof, were $4.87 per rentable square foot of the
Premises, inclusive of $3.37 per rentable square foot, or $806,468.00
(representing the product of $3.37 per square foot, multiplied by 238,600
rentable square feet contained within the Premises) for all Operating Expenses
other than Taxes (said expenses being herein referred to as the "Non-Tax
Operating Expenses" and the Base Year amount thereof being referred to as the
"Non-Tax Expense Base Year Amount"), and $1.50 per rentable square foot, or
$357,900 (representing the product of $1.50 per square foot, multiplied by
238,600 rentable square feet contained within the Premises) for the component of
Operating Expenses relating only to Taxes (the "Tax Expense Base Year Amount").
For purposes hereof, the term "Taxes" shall have the meaning described in the
fifth (5th) item appearing on the first page of Exhibit "E" (Operating Expenses
- Definitions) attached to the Original Lease. The foregoing stipulated amounts
of the Operating Expenses of the Base Year, the Non-Tax Expense Base Year Amount
and the Tax Expense Base Year Amount, shall be deemed to be final and not
subject to adjustment under any circumstances and without regard to the validity
or enforceability of the tax abatement agreement which has been obtained by
Tenant prior to the date hereof. For so long as the Premises are subject to the
tax abatement obtained by Tenant pursuant to Special Stipulation 30 of the
Lease, the provisions of the Lease with regard to Operating Expenses shall be
applied separately with respect to Non-Tax Operating Expenses and Taxes,
utilizing the Non-Tax Expense Base Year Amount and the Tax Expense Base Year
Amount, respectively. Subject to the limitations contained in Special
Stipulation 6 of the Lease (as restated in this Fifth Amendment), Tenant agrees
that it shall pay as additional rent pursuant to Section 8 of the Lease the
amount by which (if any) the Taxes in any calendar year exceed the Tax Expense
Base Year Amount. To the extent that such Taxes are less than the Tax Expense
Base Year Amount as a result of the property tax abatement now or hereafter
obtained by Tenant pursuant to Special Stipulation 30 (as restated in Paragraph
17 of this Fifth Amendment), the "Tax Savings" (as defined in said Special
Stipulation) shall be applied to reduce the additional rent otherwise payable by
Tenant pursuant to Section 8 of the Lease with respect to Taxes. If and to the
extent the Premises were to be subjected to a "rollback" of Taxes for any period
during Tenant's tax abatement period (notwithstanding any provisions of Tenant's
tax abatement agreement to the contrary), Landlord and Tenant, upon the demand
of either party, shall make such adjustments to Operating Expenses with respect
to any periods subjected to any such rollback of Taxes so as to ensure that
Landlord's obligation shall be the payment of any Taxes up to the Tax Expense
Base Year Amount and Tenant's obligation shall be the payment of any Taxes in
excess of the Tax Expense Base Year Amount. Nothing contained herein shall
affect Tenant's rights or Landlord's obligations pursuant to the first
grammatical paragraph of Section 17(a) of the Original Lease with respect to the
adjustment of additional rental in the event Tenant elects to provide its own
janitorial services to the Premises.
8. Destruction of Premises. Section 20 of the Original Lease is
hereby deleted in its entirety and the following Section 20 is hereby inserted
in lieu thereof:
3
20. DESTRUCTION OF PREMISES.
20.1 Reciprocal Termination Rights.
(a) If the Premises are damaged or destroyed, in
whole or in part, by a fire or other casualty ("Casualty"), Landlord shall
obtain the determination of Landlord's Architect (as defined in Section 20.4
hereof) of the Estimated Repair Period (as defined in Section 20.3 hereof) on or
before the Determination Date (as also defined in Section 20.3 hereof). Unless
this Lease is terminated by Landlord or Tenant pursuant to this Section 20,
Landlord shall repair and restore the Premises, subject to and as provided in
Section 20.3 hereof, within the Estimated Repair Period in each case. For
purposes of this Section 20, and the time periods referenced herein, the date of
the related Casualty is herein referred to as the "Damage Date."
(b) If less than twenty-five percent (25%) of
the number of rentable square feet of space contained in either Building are
rendered untenantable as a result of a Casualty, then Landlord shall repair and
restore the Premises as provided in Section 20.3 hereof within one hundred
twenty (120) days unless the Estimated Repair Period is more or less than one
hundred twenty (120) days, but not more than one hundred eighty (180) days, in
which event Landlord shall repair and restore the Premises within the Estimated
Repair Period; provided, however, that if in the reasonable determination of
Landlord's Architect given in writing to both parties pursuant to Section 20.3
hereof on or before the Determination Date, the Estimated Repair Period is more
than one hundred eighty (180) days after the Damage Date, either party may
terminate this Lease by giving the other party notice within ten (10) days after
receipt of such determination of Landlord's Architect.
(c) If more than twenty-five percent (25%) but
up to fifty percent (50%) of the number of rentable square feet of space
contained in either Building are rendered untenantable as a result of a
Casualty, and if in the reasonable determination of Landlord's Architect given
in writing to both parties pursuant to Section 20.3 hereof on or before the
Determination Date, the Estimated Repair Period is more than one hundred eighty
(180) days after the Damage Date, either party may terminate this Lease by
giving the other party notice within ten (10) days after receipt of such
determination of Landlord's Architect. If the Lease is not so terminated, then
Landlord shall repair and restore the Premises as provided in Section 20.3
hereof within the Estimated Repair Period.
(d) If more than fifty percent (50%) of the
number of rentable square feet of space contained in either Building are
rendered untenantable as a result of a Casualty, and if in the reasonable
determination of Landlord's Architect given in writing to both parties
pursuant to Section 20.3 hereof on or before the Determination Date, the
Estimated Repair Period is more than two
4
hundred seventy (270) days after the Damage Date, either party may terminate
this Lease by giving the other party notice within ten (10) days after receipt
of such determination of Landlord's Architect. If the Lease is not so
terminated, then Landlord shall repair and restore the Premises as provided in
Section 20.3 hereof within the Estimated Repair Period.
20.2 Tenant's Additional Termination Rights. In addition
to the termination rights granted to Tenant under Section 20.1 above, if the
Premises are damaged or destroyed by Casualty, and if the Premises are not
restored in all material respects by Landlord to the extent required of Landlord
hereunder within the Estimated Repair Period (as such period may be extended for
delays outside of Landlord's control as set forth herein below), then at any
time following the expiration of the Estimated Repair Period and prior to
substantial completion of such repair and restoration, Tenant shall have the
right to terminate this Lease by giving written notice thereof to Landlord;
provided, however, that if Landlord is delayed as a result of changes, deletions
or additions in construction requested by Tenant, or other delays or
interference caused by the acts or omissions of Tenant or its agents,
contractors or employees, or as a result of force majeure, the Estimated Repair
Period shall be extended for the amount of time Landlord is so delayed; and
provided further that if Tenant exercises such election to terminate and
Landlord shall complete the repair and restoration of the Premises to the extent
required of Landlord hereunder within thirty (30) days following the date of
Tenant's notice of termination, said notice of termination shall be nullified
and the Lease shall continue in full force and effect. Unless the delay is
caused by Tenant, its agents, contractors or employees, the extension under the
first proviso in the preceding sentence shall not exceed an additional ninety
(90) days.
20.3 Landlord's Restoration Obligations. Promptly upon the
occurrence of any Casualty, Landlord shall require Landlord's Architect to
prepare a written determination for the benefit of Landlord and Tenant of said
Architect's estimation of the time period reasonably required from the Damage
Date, in light of all circumstances then known, to complete the restoration of
the Premises, said written determination to be made and delivered to Landlord
and Tenant as soon as may be practicable under the circumstances and in any
event within thirty (30) days after the related Casualty (the "Determination
Date"); provided, however, that if Warner, Summers, Ditzel, Benefield, Xxxx &
Associates, Inc. or the principal(s) of said firm who designed and are familiar
with the plans and specifications for the Building are not available to serve as
Landlord's Architect, the Determination Date shall be thirty (30) days after the
date on which Landlord shall have selected, and Tenant shall have approved,
another architect to serve as Landlord's Architect, such selection and approval
to be made as promptly as practicable. The period of time estimated by
Landlord's Architect for the completion of repairs to the Premises, as set forth
in said written notice from Landlord's Architect to Landlord and Tenant and as
measured from the related Damage Date, is herein referred to as the "Estimated
Repair Period." If neither Landlord nor Tenant has the right to terminate this
Lease pursuant to any of the provisions of this Section 20, or if the party or
parties that
5
have the right to terminate this Lease do not exercise such right as herein
provided, then, subject to the last sentence of this Section 20.3, Landlord
shall have the property damaged by such Casualty repaired or restored to the
condition in all material respects that existed prior to the Casualty at the
sole expense of the Landlord. If Landlord is obligated hereunder to repair and
restore such damage, Landlord shall use all reasonable efforts in good faith to
commence and thereafter to prosecute to completion the repair and restoration of
such damage as speedily as may be practicable under the circumstances and to
complete such repair and restoration within the Estimated Repair Period.
Landlord further agrees to allow Tenant an abatement in the Base Monthly Rental
for such time as the Premises are untenantable or proportionately for such
portion of the Premises as shall be untenantable, and Tenant covenants and
agrees that the terms of this Lease shall not be otherwise affected. In no event
shall Landlord be required to repair or replace any trade fixtures, furniture,
equipment or other property belonging to Tenant, nor shall Landlord be required
to rebuild, repair or replace any part of the partitions, fixtures, additions or
other improvements which may have been placed in or about the Premises by
Tenant.
20.4 Landlord's Architect; Termination Conditions. For
purposes of this Section 20, the term "Landlord's Architect" shall mean Warner,
Summers, Ditzel, Benefield, Xxxx & Associates, Inc., except that if said firm is
then no longer in existence or if the principal(s) of said firm who designed and
are familiar with the plans and specifications for the Buildings (i.e., Xxxxx
Xxxxxxx and Xxxxx Xxxxxxxxxxx) shall then have retired or withdrawn from said
firm or shall then be disabled or deceased, or if said firm declines to serve as
Landlord's Architect, the term "Landlord's Architect" shall mean a reputable,
qualified architect licensed in Georgia selected by Landlord, the selection of
whom shall be subject to Tenant's reasonable approval (which shall not be
unreasonably denied, delayed or conditioned). In the event of any termination of
this Lease by either party pursuant to this Section 20, Rent hereunder shall be
apportioned and paid to the date of termination.
20.5 Termination Rights During Last Eighteen (18) Months;
Uninsured Loss. Notwithstanding anything in this Section 20 to the contrary, if
the Premises are substantially damaged or destroyed by Casualty at any time
during the last eighteen (18) months of the Term, then Landlord may terminate
this Lease upon notice to Tenant within thirty (30) days after the Damage Date;
provided that if Landlord exercises such election to terminate and Tenant has
any unexercised option to extend the Term, then Tenant may nullify Landlord's
asserted termination of this Lease by exercising Tenant's right to extend the
Term, pursuant to Special Stipulation 13 of the Lease, for the applicable
renewal term within fifteen (15) days after receipt of Landlord's notice of
termination. Also, notwithstanding anything in this Section 20 to the contrary,
if the Premises are substantially damaged or destroyed by Casualty, and such
Casualty occurs during the last eighteen (18) months of the Term, Tenant may
terminate this Lease upon notice to Landlord within thirty (30) days after the
Damage Date. Also, notwithstanding anything in
6
this Section 20 to the contrary, if the Premises are substantially
damaged as the result of a Casualty not required to be insured against
by Landlord hereunder or if the Premises are substantially damaged by
Casualty required to be insured against by Landlord but the insurance
company is insolvent and financially unable to pay the proceeds which
otherwise are payable (through no fault of Landlord), Landlord shall
have the right to terminate this Lease by notice to Tenant given within
sixty (60) days after the Damage Date. As used in this Section 20, the
term "substantially damaged" shall mean such damage that the cost of
repair and restoration thereof is reasonably estimated by Landlord's
Architect to exceed Three Million and No/100 Dollars ($3,000,000).
20.6 Reaffirmation of Lease. Upon the occurrence of any
damage to, or destruction of the Premises, and provided that either
Tenant does not have the right hereunder to terminate this Lease as a
result of such damage or if Tenant does have the right hereunder to
terminate this Lease but has elected not to (or has failed to)
terminate this Lease as provided herein, Tenant shall, within ten (10)
days after receipt by Tenant of a written request therefor from
Landlord and the receipt by Tenant from Landlord or Landlord's
Architect, as the case may be, of all notices, elections and other
information Tenant may reasonably require in order to make any election
permitted under this Section 20, provide Landlord with a written
reaffirmation of this Lease, including an acknowledgment that Tenant
does not have the right to terminate this Lease as a result of such
damage or that Tenant had the right to terminate this Lease but has
elected not to (or has failed to) terminate this Lease as herein
provided.
9. Subordination. Supplementing Section 32 of the Lease, Tenant
agrees that any "certificate" confirming the subordinate nature of the Lease to
any Security Deed may itself be in the form of a subordination, non-disturbance
and attornment agreement between the applicable lender and Tenant, and Tenant
agrees that upon request by Landlord, Tenant shall join in and deliver such
subordination, non-disturbance and attornment agreement, provided that same is
in a commercially reasonable form utilized by institutional lenders.
10. Property Tax Increase. At Tenant's request, in furtherance of
Tenant's desire to obtain tax abatements with respect to the Premises as
provided in Special Stipulation 30 of the Original Lease, Landlord conveyed the
Premises to the Development Authority of Xxxxxx County (the "Authority") and
leased the Premises back from the Authority for a term of fifteen (15) years.
Accordingly, Tenant hereby agrees that Special Stipulation 6 of the Original
Lease shall be inapplicable to any transfer of the Premises from the Authority
to Landlord or to any determination by a governmental authority as to the
invalidity or unenforceability of Tenant's tax abatement agreement.
7
11. Deletion of Additional Landlord Contribution to Tenant Costs.
Landlord and Tenant hereby acknowledge and agree that Tenant has not heretofore
exercised its right under the first sentence of Special Stipulation 7 of the
Original Lease to cause Landlord to pay for up to $2.50 per rentable square foot
of the Premises of the Tenant Costs over and above the total $24.00 per rentable
square foot Tenant Improvement Allowance, and Tenant has determined that Tenant
will not exercise such right under the first sentence of Special Stipulation 7
of the Original Lease. Accordingly, the first sentence of Special Stipulation 7
of the Original Lease is hereby deleted.
12. Tenant's Profit Participation. Landlord and Tenant hereby
acknowledge, stipulate and agree that Special Stipulation 8 of the Lease shall
be binding only on the initial Landlord, Mount Xxxxxx Place Partners, LLC. Said
initial landlord under the Lease is sometimes referred to in this Fifth
Amendment as "Mount Xxxxxx". Mount Xxxxxx has disclosed to Tenant that Mount
Xxxxxx has entered into a contract to sell the Buildings to Xxxxx Capital, Inc.,
a Georgia corporation (Xxxxx Capital, Inc. and its permitted assigns, including,
without limitation, Xxxxx Operating Partnership, L.P., a Delaware limited
partnership, are herein referred to as "Xxxxx"). Immediately upon any
consummation of the purchase and sale of the Buildings by and between Mount
Xxxxxx and Xxxxx and the assignment to and assumption by Xxxxx of the Lease,
Special Stipulation 8 of the Lease shall be deemed automatically deleted in its
entirety and shall have no further force or effect whatsoever. Notwithstanding
the foregoing, Mount Xxxxxx shall remain responsible for the payment to Tenant
of all amounts payable to Tenant upon the sale of the Buildings to Xxxxx
pursuant to Special Stipulation 8; Tenant shall look solely to Mount Xxxxxx for
the payment of any such sums; and neither Xxxxx nor any other successor landlord
shall have any liability whatsoever to Tenant pursuant to or arising out of said
Special Stipulation 8, or be subject to any claim, counterclaim, demand, right
of set-off or reduction or abatement in rent arising out of said Special
Stipulation 8.
13. Special Stipulation 12 Representation. Landlord and Tenant
acknowledge that the representation made by Landlord in the first sentence of
Special Stipulation 12 of the Lease is effective only as of the date of the
execution and delivery of the Original Lease. The foregoing acknowledgment shall
not be deemed to release Mount Xxxxxx from any obligations incurred by Mount
Xxxxxx pursuant to Special Stipulation 12 at any time prior to the date on which
Mount Xxxxxx may no longer be the Landlord under the Lease, nor shall the
foregoing acknowledgment be deemed to release Landlord from its continuing
obligations pursuant to the second sentence of Special Stipulation 12 of the
Lease.
14. Prior Modification of Special Stipulation 23. Tenant
acknowledges and agrees that notwithstanding anything to the contrary set forth
in Special Stipulation 23 of the Original Lease, Tenant's rights as to the use
of the Land and the Buildings 1 and 2 Parking Deck are and shall be
8
subject to the nonexclusive rights and easements of Spring Creek Partners, LLC,
a Georgia limited liability company ("Spring Creek"), as the owner of the land
which is the subject of the Building 3 Lease (the "Building 3 Land"), which
rights and easements shall inure to the benefit of the successors,
successors-in-title and assigns of Spring Creek, and its and their tenants,
agents, employees and invitees and other occupants from time to time of the
Building 3 Land, as provided in (a) Special Stipulation 14 of the Lease (which
is set forth in the Third Amendment), and (b) Special Stipulation 32 of the
Lease (which also is set forth in the Third Amendment), and (c) as shall be
provided in the amendment to the Existing Easement Documents to be entered into
prior to the commencement of construction of the office building contemplated by
the Building 3 Lease, as provided in said Special Stipulation 32.
15. Parking. Special Stipulation 14 as set forth in Paragraph 3 of
the Third Amendment is hereby deleted in its entirety and the following Special
Stipulation 14 is hereby inserted in lieu thereof:
14. Landlord and Tenant acknowledge, stipulate and agree
that Landlord has constructed an additional sixth level of parking (the
"Additional Parking Level") containing 149 parking spaces on the
existing parking deck located on the Premises (said parking facility,
as so expanded, is referred to as the "Buildings 1 and 2 Parking Deck")
and that the Buildings 1 and 2 Parking Deck, as so expanded, contains a
total of 929 parking spaces. Landlord agrees that all of the parking
spaces within the Buildings 1 and 2 Parking Deck shall be available
during the Term and any extensions or renewals thereof for the sole use
of Tenant at no charge, except that the rights of Tenant to use the
Additional Parking Level may be terminated in the event of the
occurrence of a Building 3 Lease Termination, as defined in Special
Stipulation 32 of this Lease. All such spaces, subject to the foregoing
and all remaining terms and conditions of the Lease, will be available
twenty-four (24) hours per day, seven (7) days a week, every day of the
year.
16. Cooperation in Tax Abatement. In furtherance of Tenant's
desire to obtain tax abatements with respect to the Premises as provided in
Special Stipulation 30 of the Lease, Landlord and Tenant acknowledge, stipulate
and agree that prior to the date hereof, Landlord has cooperated with Tenant in
obtaining certain ad valorem real property tax abatement benefits for the
Premises through the issuance of (a) that certain Development Authority of
Xxxxxx County Taxable Revenue Bond (Internet Security Systems, Inc. Project),
Series 2000A, dated as of September 14, 2000, Numbered AR-1, in the stated
amount of Twenty-Six Million and No/100 Dollars ($26,000,000.00), and that (b)
Development Authority of Xxxxxx County Taxable Revenue Bond (Internet Security
Systems, Inc. Project) Series 2000A, Numbered AR-2 in the stated amount of Six
Million Five Hundred Thousand and No/100 Dollars ($6,500,000), dated as of
December 20, 2001 (collectively, the "Bonds"). Landlord agrees, upon the request
of Tenant and at Tenant's sole cost and expense (including, without limitation,
the agreement of Tenant to pay or reimburse Landlord's actual and reasonable
attorneys' fees and expenses incurred in connection therewith), to cooperate
with Tenant in obtaining the issuance of "Additional Bonds" relative to the
"Series 2000B Bonds" (as said terms are defined in the Indenture and Authority
Lease described below) by the Development Authority of Xxxxxx County ("Issuer")
up to the maximum amount thereof authorized pursuant to that certain Indenture
of Trust between Issuer and SunTrust Bank, as trustee, dated as of
9
September 1, 2000, it being mutually understood and agreed that Tenant
anticipates seeking the issuance of such Additional Bonds relative to the Series
2000B Bonds in or about December 2002. It is expressly understood and agreed
that Landlord makes no representations or warranties of any kind whatsoever in
respect of any tax abatement agreement obtained by Tenant, whether prior to or
after the date of this Amendment; it being Landlord's sole obligation, at no
cost or expense to Landlord, to cooperate in good faith with Tenant, at Tenant's
expense, in obtaining and maintaining a tax abatement for the Premises for so
long as permissible under Georgia law.
17. Tax Abatement and Tax Gross-Up Provision. Special Stipulation
30 of the Original Lease is hereby deleted in its entirety and the following
Special Stipulation 30 is hereby inserted in lieu thereof:
30. Landlord and Tenant mutually acknowledge and agree
that prior to the date of this Fifth Amendment, Tenant obtained certain
property tax abatements with respect to the Premises. Landlord and
Tenant further mutually acknowledge and agree that if in any calendar
year during the Term of this Lease while such property tax abatement is
in effect, the actual Taxes paid or incurred by Landlord with respect
to the Premises are less than the Tax Expense Base Year Amount of
$357,900.00 (the amount by which $357,900.00 exceeds such actual Taxes
in any calendar year during the Term while such tax abatement is in
effect being herein referred to as the "Tax Savings"), then, the amount
of such Tax Savings shall be applied to reduce the additional rent
otherwise payable by Tenant pursuant to Section 8 of the Lease with
respect to Taxes. For purposes of calculating Operating Expenses for
the first year of the Term or any other calendar year during the Term,
including the Operating Expense Base Year of 2001, Operating Expenses
shall be calculated based upon a fully assessed and occupied Building."
18. Special Stipulation 32 Amendment. Special Stipulation 32 of
the Lease, as added to the Lease pursuant to the Third Amendment, is hereby
modified and amended as follows:
(a) by inserting the phrase ", except for such reasonable
rights of ingress and egress as may be reasonably required to obtain
access to and from the Additional Parking Level" at the end of clause
(i) thereof; and
(b) by deleting the date "August 1, 2001" appearing
therein on page 3 of the Third Amendment, and by inserting in lieu of
said date the phrase "the commencement of construction of the office
building improvements under the Building 3 Lease".
19. Emergency Power Generators. Landlord has heretofore installed
one or more emergency power generators (collectively, the "Generator") and
associated fuel storage tanks (collectively, "FST") in accordance with
specifications designed by Tenant as provided in Special Stipulation 20 of the
Original Lease, and Tenant has accepted the Generator and FST for maintenance by
Tenant and acknowledges that same have been installed in accordance with
Tenant's requirements and are satisfactory for Tenant's purposes. Tenant shall
be solely responsible during the Term of the Lease for conducting all monitoring
and maintenance of the Generator and FST in accordance with all applicable
requirements of governmental authorities and in accordance with the equipment
specifications of the manufacturers thereof, all at Tenant's sole cost and
10
expense. If any Generator should cease to function properly, however, Tenant may
elect not to repair or replace such Generator, or otherwise to keep such
Generator in operating condition, so long as the Tenant's election not to
maintain the Generator in operating condition shall not adversely affect the
environmental condition of the Premises. Within ninety (90) days prior to the
expiration of the Lease, or if the Lease shall terminate prior to the natural
expiration of the Term of the Lease, within thirty (30) days after the
termination of the Lease, Tenant shall provide to Landlord written confirmation
to Landlord from an environmental consultant reasonably approved by Landlord
that the FST and Generator have not impacted soil or groundwater at the
Premises. In the event Tenant is unable or fails to provide such confirmation to
Landlord within thirty (30) days after written notice from Landlord to Tenant
requesting the same, then and in that event, Landlord shall have the right to
require Tenant to remove and dispose of the FST and Generator in accordance with
all applicable Environmental Laws and to repair any damage to the Premises
caused by such removal and to remediate and clean up any impacted soil or
groundwater at the Premises, all at Tenant's sole cost and expense. Unless
Landlord exercises such option to cause Tenant to remove and dispose of the FST
and Generator as provided in the preceding sentence, Tenant shall have no right
to remove, and shall not remove, the FST and Generator upon the termination or
expiration of the Lease. Tenant shall operate and, if applicable, remove (or
close in place) the FST and remove Generator in strict compliance with all
applicable federal, state and local laws, codes and regulations.
Tenant shall immediately notify Landlord and provide copies upon
receipt of all written complaints, claims, citations, demands, inquiries,
reports or notices relating to the FST or the Generator.
Notwithstanding any other provision in the Lease, Landlord shall have
the right, but not the obligation, to enter the Premises or to take such other
actions as it deems necessary to respond to, clean up, remove, resolve or
minimize the impact of, or otherwise manage, any Hazardous Substances released
as a result of the operation or existence of the FST or Generator; provided,
however, that, except in an emergency, Landlord shall take such action only
after providing at least ten (10) days written notice to Tenant of the existence
of conditions requiring action and the failure by Tenant to address such
conditions to the satisfaction of the Landlord. All reasonable costs and
expenses incurred by Landlord in the exercise of any such rights, which costs
and expenses result from the violation of the covenants and agreements of Tenant
contained in this Paragraph, shall be deemed additional rent under the Lease and
shall be payable by Tenant upon demand.
Tenant agrees to and shall indemnify Landlord and hold Landlord
harmless from and against (i) the negligence of Tenant or its employees, agents
or contractors in the operation and removal of the FST and Generator and (ii)
environmental liabilities of any kind whatsoever associated with the FST or the
Generator. Landlord agrees to and shall indemnify Tenant and hold Tenant
harmless from and against the negligence of Landlord or its employees, agents or
contractors in the exercise of any rights of Landlord in connection with the FST
and Generator.
20. Tenant Improvements in Remaining Space. Tenant hereby acknowledges
that, excepting only that certain space on the fifth (5th) floor in the Phase II
Building which contains 23,100 rentable square feet (the "Remaining Space"),
Tenant is in full and complete possession of the Premises and has accepted the
same, including the work of Landlord performed therein pursuant to the terms and
provisions of the Lease. Tenant does hereby further acknowledge that (i)
Landlord
11
has completed all of the Base Building work and improvements required to be
furnished, installed and made operational by Landlord under the Lease, including
all Base Building work and improvements in or affecting the Remaining Space,
(ii) excepting only the Tenant Improvements in the Remaining Space, all Tenant
Improvements in the Premises have been completed and are satisfactory to Tenant
in all respects, and (iii) Landlord has heretofore fully funded the Landlord's
Allowance for Tenant Costs (also referred to in the Lease as the Tenant
Improvement Allowance) with respect to the entire Premises, including the
Remaining Space, and no further Tenant Improvement Allowance is available from
Landlord to apply to the Tenant Costs which may be incurred with respect to the
Remaining Space.
Landlord and Tenant hereby agree that notwithstanding anything to the
contrary contained in the Lease, Tenant, and not Landlord, shall be responsible
for the construction and installation of the Tenant Improvements in the
Remaining Space through a contractor or contractors selected by Tenant and
approved by Landlord as hereinafter provided, and Landlord is hereby relieved of
any obligations and responsibilities with respect to the construction and
installation of the Tenant Improvements in the Remaining Space. The Tenant
Improvements in the Remaining Space shall be constructed and installed by Tenant
in accordance with the terms, conditions, requirements and procedures set forth
on Exhibit "A" attached hereto and by reference made a part hereof.
21. Costs of Utilities. The following is hereby added as item 27
in the list of the "Operating Expense Exclusions" attached as Exhibit "E" to the
Original Lease:
27. The cost of all utilities for the Premises, including
the cost of electricity, gas, water and sewer services, it being
acknowledged that Tenant shall be responsible for the cost of such
utilities, as provided in Section 17 of this Lease and Special
Stipulation 31.
22. Miscellaneous. Except as modified by this Fifth Amendment, the
Lease shall otherwise remain unmodified and in full force and effect and the
parties do hereby ratify and confirm the terms thereof. In the event of conflict
or inconsistency between the terms and conditions of the Lease and the terms and
conditions of this Fifth Amendment, the terms of this Fifth Amendment shall
control and prevail and govern the rights, liabilities and obligations of the
parties. This Fifth Amendment may be executed in counterparts and/or with
counterpart signature pages, all of which together shall constitute a single
agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
12
IN WITNESS WHEREOF, the parties, through their duly authorized officers
and manager, respectively, have executed this Fifth Amendment the day and year
first above written.
"TENANT":
INTERNET SECURITY SYSTEMS, INC.,
a Georgia corporation
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
--------------------------------
Title: CFO
-------------------------------
Attest: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
--------------------------------
Title: Secretary
-------------------------------
[CORPORATE SEAL]
"LANDLORD":
MOUNT XXXXXX PLACE PARTNERS, LLC,
a Georgia limited liability company
By: /s/ Xxxx X. Xxxxxxx (SEAL)
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Manager
For Ten and No/100 Dollars ($10.00) and other good and valuable
consideration in hand paid by Landlord to Internet Security Systems, Inc., a
Delaware corporation (successor by name change to ISS Group, Inc., a Delaware
corporation) ("Guarantor"), the receipt and sufficiency of which are hereby
acknowledged by Guarantor, Guarantor agrees that Guarantor's Guaranty Agreement
of the Lease dated November 8, 1999 (the "Guaranty") shall remain in full force
and effect and shall constitute a Guaranty of the Lease, as amended by this
Fifth Amendment to Lease Agreement. Guarantor, through its duly authorized
officers, join in the execution provisions of this Fifth Amendment for the
purpose of reaffirming its guaranty obligations, as amended by this Fifth
Amendment.
"GUARANTOR"
Signed, sealed and delivered INTERNET SECURITY SYSTEMS, INC.,
in the presence of: a Delaware corporation
/s/ Xxxx Xxxxxx
------------------------------------- By: /s/ Xxxxxxx Xxxxxxx
Unofficial Witness ----------------------------------
Name: Xxxxxxx Xxxxxxx
/s/ Xxxxxxxx Xxxxxxxxxxx --------------------------------
------------------------------------- Title: CFO
Notary Public -------------------------------
Attest:
[NOTARIAL SEAL]
By: /s/ Xxxx Xxxxx
----------------------------------
Name: /s/ Xxxx Xxxxx
--------------------------------
Title: Assistant Secretary
-------------------------------
[CORPORATE SEAL]
EXHIBIT "A"
TENANT IMPROVEMENTS IN REMAINING SPACE
(a) Drawings and Approval of Contractors. The Tenant Improvements
in the Remaining Space shall be constructed in substantial accordance with
Drawings and Specifications to be prepared by Tenant at Tenant's cost and to be
approved in writing by Landlord prior to the commencement of such Tenant
Improvements. Landlord's approval of such Drawings and Specifications shall not
be unreasonably withheld. Tenant shall also obtain the prior written consent of
Landlord (which consent shall not be unreasonably withheld) as to the
qualification of the contractor Tenant chooses to perform the Tenant
Improvements in the Remaining Space ("Tenant's Contractor") and the mechanical
and electrical subcontractors to be engaged in connection with the Tenant
Improvements in the Remaining Space. Landlord shall have no responsibility for
any defects or deficiencies in the Tenant Improvements in the Remaining Space
performed by Tenant through Tenant's Contractor, and no approval by Landlord of
the identity of Tenant's Contractor or any mechanical or electrical
subcontractors to be engaged in connection with the Tenant Improvements in the
Remaining Space shall create or give rise to any such responsibility. Tenant
shall contract directly with Tenant's Contractor for the performance of the
Tenant Improvements in the Remaining Space.
(b) Certain Requirements. Tenant and Tenant's Contractor shall
perform the Tenant Improvements in the Remaining Space as follows:
(i) All of such work shall be done and installed in
compliance with all reasonable rules and regulations promulgated by
Landlord from time to time and all applicable requirements of any
governmental authority having jurisdiction with respect to such work
and shall comply with applicable standards of The National Board of
Fire Underwriters, The American Society of Heating, Refrigeration and
Air Conditioning Engineers, Landlord's insurance underwriter, and the
requirements of the insurance companies which provide insurance
coverage relating to the Building. Approval by Landlord shall not be
deemed to relieve Tenant of its obligations to comply with the
requirements of applicable governmental authorities and other matters
set forth in this paragraph.
(ii) In connection with such work, Tenant shall file all
approved plans and specifications and other materials, pay all fees and
obtain all permits and applications from the Building Department and
any other authorities having jurisdiction; and Tenant shall obtain a
certificate of occupancy and all other approvals required for Tenant to
use and occupy the Remaining Space. Landlord shall cooperate with
Tenant to facilitate the efficient processing of all such permits and
applications. Copies of all permits, certificates and approvals shall
be forwarded to Landlord promptly after receipt by Tenant.
(iii) No item shall be mounted or hung from the exterior of
the Building by Tenant or Tenant's Contractor without Landlord's prior
written approval.
MOUNT XXXXXX PLACE PARTNERS
EXHIBIT "A"
FIFTH AMENDMENT TO ISS LEASE
TENANT IMPROVEMENTS IN REMAINING SPACE
(iv) Upon completion of the Tenant Improvements in the
Remaining Space, Tenant's architect shall furnish to Landlord a
complete set of the as-built Drawings and Specifications with respect
to the Tenant Improvements in the Remaining Space.
(c) Insurance. Tenant shall provide or cause to be provided the
following type of insurance during the construction of the Tenant Improvements
in the Remaining Space:
(i) At all times during the period between the
commencement of construction of such work and the date such work is
completed and Tenant commences occupancy of the Remaining Space for
business purposes, Tenant shall maintain or cause to be maintained,
casualty insurance in Builder's Risk Form, covering Landlord,
Landlord's managing agent, Landlord's mortgagee, and Tenant and
Tenant's contractors and subcontractors, as their interests may appear,
against loss or damage by fire, vandalism, and malicious mischief and
other such risks as are customarily covered by the so-called broad form
extended coverage endorsement upon all such work in place and all
materials stored at the site of such work and all materials, equipment
and supplies of all kinds incident to such work and builder's
machinery, tools and equipment used in the construction of such work
while in or on the Premises, or when adjacent thereto, all on a
completed value basis to the full insurable value at all times. Said
Builder's Risk Insurance will also include coverage for loss of rents
for a period of twelve (12) months. Said Builder's Risk Insurance shall
contain an express waiver of any right of subrogation by the insurer
against Landlord, its agents, employees and contractors.
(ii) Liability Insurance in amounts not less than as
required by Section 22 of the Lease. Such liability insurance shall be
on a comprehensive basis including:
(1) Premises - Operations (including X-C-U);
(2) Independent contractors protection;
(3) Contractual Liability, including specified
provisions for the general contractor's obligations under
subparagraph (i) above and for the Tenant's Contractor's
indemnity obligations under subparagraph (d) below;
(4) Owned, non-owned and hired motor vehicles;
and
(5) Broad form coverage for property damage.
(iii) Statutory Workers' Compensation Insurance as required
by the State of Georgia or local municipality having jurisdiction.
All insurance policies procured and maintained pursuant to this
paragraph shall name Landlord, Landlord's managing agent, and
Landlord's mortgagee and any additional parties designated by
0
XXXXX XXXXXX XXXXX PARTNERS
EXHIBIT "B"
FIFTH AMENDMENT TO ISS LEASE
TENANT IMPROVEMENTS IN REMAINING SPACE
Landlord (which have an insurable interest) as additional insureds, shall be
carried with companies licensed to do business in the State of Georgia
reasonably satisfactory to Landlord and shall be non-cancelable except after
twenty (20) days written notice to Landlord. Such policies or duly executed
certificates of insurance with respect thereto shall be delivered to Landlord
before the commencement of such work, and renewals thereof as required shall be
delivered to Landlord at least thirty (30) days prior to the expiration of each
respective policy term.
(d) Indemnity. Tenant shall indemnify and hold harmless Landlord
and any of Landlord's contractors, agents and employees from and against (but
subject to any waiver of subrogation required or permitted by the Lease) any and
all losses, damages, costs (including costs of suits and reasonable attorneys'
fees incurred), liabilities, or cause of action arising out of the actions of
Tenant or Tenant's Contractor during the course of the construction of the
Tenant Improvements in the Remaining Space, including but not limited to
mechanics', materialmen's or other liens or claims (and all costs or expenses
associated therewith) asserted, filed or arising out of any such work. All
materialmen, contractors, artisans, mechanics, laborers and other parties
hereafter contracting with Tenant or Tenant's Contractor for the furnishing of
any labor, services, materials, supplies or equipment with respect to the
Remaining Space are hereby charged with notice that they must look solely to
Tenant for payment of same. Without limiting the generality of the foregoing,
Tenant shall repair or cause to be repaired at its expense all damage caused by
Tenant's Contractor, its subcontractors or their employees. Tenant shall
promptly pay to Landlord, upon notice thereof from Landlord, any costs incurred
by Landlord to repair any damage caused by the Tenant's Contractor or any costs
incurred by Landlord in requiring the Tenant's Contractor's compliance with the
rules and regulations. Tenant agrees to cause the Tenant's Contractor to provide
an indemnification and hold harmless agreement providing the protection set
forth in this paragraph and to cause the Tenant's Contractor to procure, as
additional protection, an indemnification and hold harmless agreement from each
subcontractor providing for the protection set forth in this paragraph. In
connection with any and all claims against Landlord or any of its agents,
contractors or employees by any employee of the Tenant's Contractor, any
subcontractor, anyone directly or indirectly employed by any of them, or anyone
for whose acts the Tenant's Contractor or any subcontractor may be liable, the
indemnification obligations of the Tenant's Contractor and any subcontractor
under the agreements hereinabove referred to in this paragraph shall not be
limited in any way by any limitation on the amount or type of damages,
compensation or benefits payable by or for the Tenant's Contractor or
subcontractor under workers' compensation acts, disability benefit acts, or
other employee benefit acts.
(e) Further Assurances. At the request of Landlord, Tenant shall,
at Tenant's sole cost and expense, provide evidence in form and content
reasonably satisfactory to Landlord (including, but not limited to, certificates
and affidavits of Tenant, Tenant's Contractor or such other persons as Landlord
may reasonably require) showing:
(i) that all outstanding claims for labor, materials and
fixtures have been paid;
MOUNT XXXXXX PLACE PARTNERS
3
EXHIBIT "B"
FIFTH AMENDMENT TO ISS LEASE
TENANT IMPROVEMENTS IN REMAINING SPACE
(ii) that there are no liens outstanding against the
Premises or the Building arising out of or in connection with the
Tenant Improvements in the Remaining Space; and
(iii) that all construction of the Tenant Improvements in
the Remaining Space prior to the date thereof has been done in
accordance with the approved Drawings and Specifications.
(f) Consent of Landlord. Any approval by Landlord of or consent by
Landlord to any plans, specifications, or other items to be submitted by Tenant
to and/or reviewed by Landlord pursuant to this Exhibit "A" shall be deemed to
be strictly limited to an acknowledgment of approval or consent by Landlord
thereto and such approval or consent shall not constitute an assumption by
Landlord of any responsibility for the accuracy, sufficiency or feasibility of
any plans, specifications or other such items and shall not imply any
representation, acknowledgment or warranty by Landlord that the design is safe,
feasible or structurally sound or will comply with any legal or governmental
requirements. Any deficiency in design, although same had prior approval of
Landlord, shall be solely the responsibility of Tenant, and any deficiency in
any construction by Tenant or Tenant's Contractor shall be solely the
responsibility of Tenant.
MOUNT XXXXXX PLACE PARTNERS
4
EXHIBIT "B"
FIFTH AMENDMENT TO ISS LEASE
TENANT IMPROVEMENTS IN REMAINING SPACE
EXHIBIT B
LEGAL DESCRIPTION
XXXXXXXXX 0 & 0
XXXXX XXXXXX XXXXX
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Xxx 00 xx xxx
00xx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and being more particularly described as
follows:
TO FIND THE POINT OF BEGINNING, commence at Xxxxxx County GIS Monument
F451 and run thence South 51 degrees 55 minutes 13 seconds East, a distance of
4,769.3 feet to a point located at the intersection of the southerly existing
right-of-way line of Mount Xxxxxx Highway (70-foot right-of-way) and the
easterly existing right-of-way line of Xxxxxxxx Road (right-of-way varies); run
thence along said easterly existing right-of-way line of Xxxxxxxx Road South 00
degrees 06 minutes 00 seconds East, a distance of 95.78 feet to a one-half inch
(1/2") rebar found; thence leaving said easterly existing right-of-way line of
Xxxxxxxx Road (right-of-way varies), run North 89 degrees 53 minutes 30 seconds
East, a distance of 11.37 feet to a point located on the easterly new
right-of-way line of Xxxxxxxx Road, said point being THE POINT OF BEGINNING;
FROM THE POINT OF BEGINNING AS THUS ESTABLISHED, run thence North 89 degrees 53
minutes 30 seconds East, a distance of 188.60 feet to a one-half inch (1/2")
rebar found; run thence North 89 degrees 53 minutes 30 seconds East, a distance
of 13.99 feet to a point; run thence South 00 degrees 06 minutes 30 seconds
East, a distance of 8.38 feet to a point; run thence South 89 degrees 53 minutes
58 seconds East, a distance of 125.81 feet to a point located on the westerly
existing right-of-way line of Georgia 400 (right-of-way varies); run thence
southerly along said westerly existing right-of-way line of Georgia 400 South 02
degrees 52 minutes 39 seconds West, a distance of 42.70 feet to a point; run
thence along the arc of a curve to the left, said arc having a radius of
6,622.90 feet and being subtended by a chord which bears South 02 degrees 48
minutes 36 seconds West, an arc distance of 15.55 feet to a point; continue
thence along said westerly existing right-of-way line of Georgia 400
(right-of-way varies) along the arc of a curve to the left, said arc having a
radius of 6,622.90 feet and being subtended by a chord which bears South 02
degrees 42 minutes 57 seconds West, an arc distance of 468.64 feet to a
point[??? CONFIRM PREVIOUS CALL WHICH IS NOT SHOWN ON LATEST REVISION OF
SURVEY]; thence leaving said westerly existing right-of-way line of Georgia 400
(right-of-way varies), run North 88 degrees 32 minutes 29 seconds West, a
distance of 318.70 feet to a point located on the easterly new right-of-way line
of Xxxxxxxx Road (right-of-way varies); run thence along said easterly new
right-of-way line of Xxxxxxxx Road North 00 degrees 06 minutes 00 seconds West,
a distance of 526.77 feet to a point, said point being THE POINT OF BEGINNING.
Said property containing 170,041 square feet or 3.9036 acres, more or
less, and being shown and depicted on that certain plat of survey captioned,
"Boundary Survey, New Right-of-Way Along Mt. Xxxxxx Hwy.," prepared for Mount
Xxxxxx Place Partners, LLC by HDR/XX Xxxxxx, under certification and seal of
Xxxxx X. Xxxxxxxx, PLS, Georgia Registered Land Surveyor No. 2659, dated March
27, 2001, last revised
May 8, 2002, which survey is incorporated herein and made a part hereof by this
reference.
TOGETHER WITH those certain rights and easements as described in and
pursuant to the terms and conditions of that certain [Reciprocal Easement
Agreement by and among Mount Xxxxxx Place Partners, LLC, Spring Creek Partners,
LLC and the Development Authority of Xxxxxx County, Georgia
dated____________________________________, 2002, to be recorded in the records
of Xxxxxx County, Georgia.]
ALSO TOGETHER WITH a non-exclusive access and parking easement as
contained in and pursuant to the terms and conditions of that certain Access and
Parking Easement Agreement by and between Spring Creek Partners, LLC and Mount
Xxxxxx Place Partners, LLC, dated as of November 30, 1999, and recorded in Deed
Book 28068, Page 272 of the records of Xxxxxx County, Georgia.
ALSO TOGETHER WITH those certain rights and easements as contained in
and pursuant to the terms and conditions of that certain Storm and Sanitary
Sewer Agreement by and among Investment Capital Company/Mount Xxxxxx, Xxxx
Xxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxx and Xxxx Xxxxxx Xxxxxx, Co-Trustees
under Declaration of Trust Designated Xxxxxx Trust dated July 19, 1982, and
recorded in Book 8920, Page 238 of the records of Xxxxxx County, Georgia.
DRAFT: 0-00-00
XXXXX XXXXXX XXXXX
(BUILDING 3)
LEASE AGREEMENT
THIS LEASE, made and entered into as of this 8th day of June 2001, by
and between SPRING CREEK PARTNERS, L.L.C., a Georgia limited liability company
(hereinafter referred to as the "Landlord") and INTERNET SECURITY SYSTEMS, INC.,
a Georgia corporation (hereinafter referred to as the as the "Tenant");
WITNESSETH:
1. PREMISES. The Landlord, for and in consideration of the rents,
covenants, agreements, and stipulations hereinafter mentioned, reserved, and
contained, to be paid, kept and performed by the Tenant, has leased and rented,
and by these presents does lease and rent, unto the said Tenant, and said Tenant
hereby agrees to lease and take upon the terms and conditions which hereinafter
appear, the following described property (hereinafter referred to as the
"Premises") one (1) building known as "Building 3" of Mount Xxxxxx Place which
shall include a underground parking level (hereinafter collectively referred to
as the "Building") to be situated in Land Xxx 00 xx xxx 00xx Xxxxxxxx, Xxxxxx
Xxxxxx, Xxxxxxx. A legal description of the land on which the Building is to be
situated is attached hereto as Exhibit "B" (hereinafter referred to as the
"Land"). Landlord and Tenant agree that the description of the Land will be
revised to exclude portions of the Land conveyed to the Georgia Department of
Transportation in lieu of condemnation, and Landlord and Tenant shall execute
amendments to the Lease to reflect the revised description of the Land, and the
Lease shall otherwise remain unimpaired.
(a) Exhibit "A" attached hereto represents a description and
approximation of the Premises to be leased pursuant to this Lease, such
Premises to comprise approximately 50,400 rentable square feet within
the Building and twenty one (21) parking spaces in the underground
parking level which is a part of the Building and located on the Land.
For purposes of this Lease, the parties agree that the rentable square
feet of the Premises shall be measured and determined in accordance
with the Building Owners and Managers Association International
standard of measurement ANSI/BOMA Z65.1 1996. Upon the final Drawings
and Specifications, as this term is defined in the Work Letter, being
ascertained, Landlord and Tenant's architect, Warner, Summers, Ditzel,
Benefield, Xxxx & Associates, Inc. shall measure the rentable square
footage of the Premises in accordance with such standard, which
measure by Landlord and Tenant's architect shall be controlling, and
the 50,400 rentable square foot figure set forth above shall be
adjusted accordingly. The standard of measurement ANSI/BOMA Z65.1 1996
shall be used as the same is in effect as of the date of this Lease
even if such standard shall change hereafter. The area of the "Bridge"
constructed by Tenant pursuant to Paragraph 4(b)(ii) of this Lease
shall not be included in the area of the Premises for purposes of
computation of the Base Rental hereunder for the initial Term and any
subsequent renewals or extensions of the Term.
(b) Within five (5) days after the Commencement Date (as defined
below) for each floor of the Building, Landlord shall deliver to Tenant
a completed Tenant Acceptance Agreement (the "Tenant Acceptance
Agreement") attached hereto as Exhibit "C" and incorporated herein,
which shall contain an acknowledgment of the date upon which the
Commencement Date (as defined below) of this Lease occurred, and
Landlord's calculation of the exact number of rentable square feet
within such floor of the Premises. Tenant shall have the right to
object to the Tenant Acceptance Agreement by delivering written notice
to Landlord within five (5) days after Landlord delivers the Tenant
Acceptance Agreement to Tenant, failing which Tenant shall be deemed to
have agreed that all information contained in the Tenant Acceptance
Agreement is correct. If Tenant objects to the Tenant Acceptance
Agreement within said five (5) day period, Landlord and Tenant shall
work together to resolve their differences and, after such differences
have been resolved, Landlord shall execute the Tenant Acceptance
Agreement and deliver same to Tenant and Tenant shall have a period of
five (5) days to give written notice to Landlord objecting to the
Tenant Acceptance Agreement, failing which Tenant shall be deemed to
have agreed that the Tenant Acceptance Agreement is correct. Upon
Tenant agreeing or being deemed to have agreed that all information
contained in the Tenant Acceptance Agreement is correct, the
Commencement Date as shown on the Tenant Acceptance Agreement shall be
the Commencement Date for purposes of Section 2 of this lease and for
all other purposes under this Lease and the rentable square feet of the
Premises as shown on the Tenant Acceptance Agreement shall replace the
rentable square feet of the leased premises referenced and defined in
Section 1 above, and shall be deemed to be the rentable square feet of
the Premises for all purposes under this lease. All payments of Base
Monthly Rental (as defined below), and all other payments of rent and
other sums of money required of Tenant herein shall be made as and when
required herein, notwithstanding any unresolved objections to the
Tenant Acceptance Agreement. All such payments shall be based upon the
Tenant Acceptance Agreement prepared by Landlord until such objections
have been finally resolved, whereupon any overpayment or any
underpayment theretofore made shall be adjusted by increasing or
reducing, as the case may be, the next installment of Base Monthly
Rental coming due.
2. TERM. The term of this Lease shall be for a period commencing on the
Commencement Date (as defined below) for the initial floor of the Building
completed for occupancy by Tenant, as described below in Special Stipulation
2(b). (such term being hereinafter referred to as the "Term"), and expiring on
the last day of the calendar month of the tenth (10th) annual anniversary of
such Commencement Date for the initial floor of the Building completed for
Tenant, unless sooner terminated as may be hereinafter provided.
The term "Buildings 1 and 2 Lease" shall mean and refer to the Lease
Agreement dated November 8, 1999, between Mount Xxxxxx Place Partners, LLC, as
Landlord, and Internet Security Systems, Inc., as Tenant, with respect to
certain premises adjacent to the Building demised under this Lease and known as
Buildings 1 and 2 of Mount Xxxxxx Place, Xxxxxx County, Georgia, as amended from
time to time, including the First Amendment to Lease Agreement dated December 7,
1999; Second Amendment to Lease Agreement dated November 7, 2000; and Third
Amendment to
-2-
Lease Agreement dated on or about the date hereof (such buildings and existing
780 space parking deck leased pursuant to the Buildings 1 and 2 Lease being
referred to as "Buildings 1 and 2", and the parking deck portion alone being
referred to as the "Buildings 1 and 2 Parking Deck".
3. COMPLETION OF IMPROVEMENTS. Landlord and Tenant agree that Landlord
will construct the Building to be comprised of approximately 50,400 rentable
square feet and twenty one (21) parking spaces in the underground parking level
of the Building and shall also construct an additional one hundred forty nine
(149) parking spaces in an additional level to be added to the Buildings 1 and 2
Parking Deck. The exact rentable square feet to the Building shall be
determined in accordance with the criteria of Paragraph 1 of the Lease. Landlord
shall construct the Building in accordance with the manuals and drawings
entitled Mount Xxxxxx Place Building in and more particularly described in
Exhibit "A" to this Amendment and made a part hereof by this reference. Any
modifications by Landlord to the construction of the Building as determined by
Landlord shall remain substantially in accordance with such plans and
specifications, provided that Landlord shall notify Tenant when any such
modifications are made by Landlord to such plans and specifications. Landlord's
construction of the Building shall be comparable in quality to the Mount Xxxxxx
Buildings I and II.
Landlord agrees to commence on or before June 25, 2001, the
construction of the additional parking level to the Buildings 1 and 2 Parking
Deck. In the event the Landlord has not done so on or before November 1, 2001
then Tenant shall have the right to terminate the Lease by notice to Landlord on
or before November 15, 2001, whereupon this Lease shall terminate and no party
shall have any rights, liabilities or obligations with respect to the Building.
Landlord agrees to proceed with due diligence to construct the Building in
accordance with the Work Letter attached as Exhibit "D" to this Lease. Landlord
shall deliver the initial floor of the Building to Tenant on or before June 1,
2003, subject to Force Majeure (as defined in Section 45 of the Lease) and the
Tenant Delay (as defined in the Work Letter), which shall be the Commencement
Date for the Building. The targeted Commencement Dates for completion of the
Building shall be as set forth in Special Stipulation 2(b), but in the event of
Tenant Delay as defined in Section 6 of the Work Letter, the Commencement Dates
for the Building shall be the date construction of the Tenant Improvements would
have been completed pursuant to the Work Letter and a certificate of occupancy
would have been issued by Xxxxxx County had not such Tenant Delay occurred. See
Special Stipulation 2(b).
Notwithstanding anything to the contrary contained herein, in the event
the Landlord does not comply with the targeted Commencement Dates for the
completion of various portions of the Building as specified in Special
Stipulation 2(b) for reasons other than either or both of Tenant Delay (as
defined below) or Force Majeure (as defined below) then for such portion of the
Building as is not so completed, then Tenant shall receive two (2) days of
abated Base Rental for such portion of the Building for each day by which such
portion of the Building is completed after such targeted Commencement Date,
unless due to Tenant Delay or Force Majeure.
As used herein, "Commencement Date" means the earlier of (i) the
Commencement Date as calculated pursuant to the foregoing, or (ii) the date upon
which Tenant commences conducting its business from all or any portion of the
Premises; provided, however, in no event
-3-
shall the Commencement Date be earlier than June 1, 2003, except as specifically
provided herein.
4. QUIET ENJOYMENT.
(a) Landlord hereby represents and warrants that, on the
Commencement Date, Landlord will own indefeasible fee simple title in
and to the Land and Building, subject to certain easements in favor of
Buildings I and II of Mount Xxxxxx Place and other utility easements in
favor of utility providers. So long as Tenant shall observe and perform
the covenants and agreements binding on it hereunder and subject to the
terms and provisions hereof, Tenant shall at all times during the Term
peacefully and quietly have and enjoy possession of the Premises.
(b) (i) Landlord agrees and acknowledges that Tenant
shall, as a part of the rights afforded Tenant under this Lease, be
entitled to use and exercise the access easements granted and created
for the benefit of the Land and Building under and by virtue of
Paragraph 3 of the Second Amendment to Reciprocal Easement Agreement
dated November 3, 1999, between Mount Xxxxxx Place Partners, LLC and
Spring Creek Partners, LLC, recorded at Deed Book 28068, Page 268,
Xxxxxx County, Georgia Records (hereinafter referred to as "Existing
Easement Documents") Landlord and Tenant acknowledge and agree that the
location of the Access Easement and Accessway set forth in the Existing
Easement Documents will need to be reconfigured through amendments to
the Existing Easement Documents to reflect the current design of
Buildings 1 and 2. The amendments to the Existing Easement Documents
shall also include the easement and right in favor of the Landlord to
construct an additional level of parking spaces of 149 parking spaces
(the "Additional Parking Level") on the Buildings 1 and 2 Parking Deck.
As a part of such amendments to the Existing Easement Documents, the
Landlord shall also grant to the owner of Buildings 1 and 2 a
non-exclusive easement for vehicular access through the accessways of
the Building to provide vehicular access from Buildings 1 and 2 to
Mount Xxxxxx Highway, and the owner of Buildings 1 and 2 shall grant
non-exclusive easements to the Landlord for the benefit of the
Building and Tenant to utilize the Buildings 1 and 2 Parking Deck,
including without limitation, the Additional Parking Level being
constructed by Landlord, and to use access ways through Buildings 1 & 2
for vehicular ingress and egress to reach Xxxxxxxx Road. Landlord
acknowledges and agrees that Tenant shall, as a part of the rights
granted and afforded to Tenant by Landlord under this Lease, be
entitled to use and exercise the non-exclusive parking easements for
the Buildings 1 and 2 Parking Deck and for vehicular access through the
access ways of Buildings 1 & 2 granted and created for the benefit of
the Building as described above and as described in the Third Amendment
to Lease being a part of the Building 1 & 2 Lease, and to be more
particularly set forth in the amendments to the Existing Easement
Documents. All such amendments to the Existing Easement Documents shall
be executed by all parties prior to August 1, 2001 and Landlord and
Tenant shall cooperate in execution of such amendments and execute any
necessary instruments to effectuate that foregoing, which instruments
shall be added to this Lease through amendments.
-4-
(ii) Landlord acknowledges and agrees that the Tenant
shall have the following "Bridge Right", upon the specified terms and
conditions. The Bridge Right shall mean and refer to the right on the
part of Tenant to construct, operate, maintain, repair and use a
elevated enclosed pedestrian walkway reaching between the Building and
Buildings 1 and 2 (the Bridge") provided that (i) the design of the
Bridge and method of connection and attachment to the Building and
Building 2 and the identity of the constructor constructing the Bridge
shall be subject to the prior approval of Landlord pursuant to
submitted plans and specifications, which approval shall not be
unreasonably withheld; (ii) the construction, maintenance, operation
and repair 1 of the Bridge shall be at the sole cost of expense of
Tenant; and (iii) the construction, use and operation of the Bridge
shall be in accordance with all applicable governmental laws,
ordinances and regulations. In the event the Tenant is not occupying
all of the Building and all of Building 2, then the Landlord shall
have the right to remove the Bridge at the cost of Landlord or prevent
use of the Bridge by closing the entrances to the Bridge. As apart of
the modification of the Existing Easement Document referenced above,
Landlord shall enter into the necessary agreements from the "landlord"
under the Buildings 1 and 2 Lease to effectuate the foregoing.
(c) Tenant shall pay to Landlord as additional rental the
Additional Parking Level Carry Costs (as defined below), which shall be
amortized over the initial five (5) years of the Term at an interest
rate of ten percent (10%) per annum beginning on the Commencement Date
of the initial floor of the Building. The amortized amounts of the
Additional Parking Level Carry Costs shall be due and payable on the
first (1st) day of each calendar month during such five (5) year
period.
The Additional Parking Level Carry Costs shall be computed as follows:
For the purposes of this computation, the Additional Parking Level
Expenses shall: be the sum of all of the expenses incurred by Landlord
in designing, developing and constructing the Additional Parking Level
to be added to the Buildings 1 and 2 Parking Deck and the costs in
preparing to build the Building including, without limitation,
construction costs for the Additional Parking Level, costs incurred in
the permitting process for the Building and Additional Parking Level,
fees for architect's and engineer's services for design of Building 3
and design and supervision of the Additional Parking Level, a pro rata
portion of a development fee for the Additional Parking Level payable
to an affiliate of Landlord, and any costs associated with securing
third party financing for the Additional Parking Level.
The Additional Parking Level Carry Costs shall be computed for
the period beginning on the date(s) the various components of the
Additional Parking Level Expenses (but not to exceed $2,000,000.00 for
purposes of this computation) are incurred and ending on the
Commencement Date of the initial floor of the Building under this
-5-
Lease. The Additional Parking Level Carry Costs shall be computed for
such period by applying to the Additional Parking Level Expenses as and
when incurred (i) an annualized rate of 0.12 as to the portion of the
Additional Parking Level Expenses funded by Landlord through equity
generated by Landlord and its members internally without third party
borrowing, but said portion funded through equity not to exceed
$1,000,000.00 for purposes of this computation, and (ii) the annualized
rate of interest (expressed as a percentage) for the portion of
Additional Parking Level Expenses financed by Landlord through third
party borrowings, but said portion to be funded through third party
funding not to exceed $ 1,000,000.00 for purposes of this computation.
5. BASE MONTHLY RENTAL. Tenant agrees to pay Landlord, by
payments to Spring Creek Partners, L.L.C., and delivered to Landlord c/x Xxxxxxx
Management Services, Inc., 000 Xx. Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000, promptly on the first day of each month in advance, during the Term of
this Lease, without deduction or set off, in legal tender, a monthly rental as
determined under Special Stipulation 13 (hereinafter referred to as "Base
Monthly Rental"). If the Term commences on a day other than the first day of a
month, or terminates on a day other than the last day of a month, the Base
Monthly Rental for the first or last partial month shall be prorated based upon
the actual number of days in such a month.
Tenant hereby acknowledges that if any monthly payment of rent or any
monies due hereunder from Tenant shall not be received by Landlord within five
(5) business days after written notice from Landlord to Tenant that such payment
is due, then Tenant shall pay the Landlord a late charge equal to 2-1/2% of such
delinquent amount. Any amounts payable hereunder by Tenant to Landlord which are
not paid within five (5) business days after written notice from Landlord to
Tenant that such payment is due shall bear interest at the rate of one percent
(1%) per month until paid.
6. BASE MONTHLY RENTAL ADJUSTMENT. For purposes of this Section 6
and all other provisions of this Lease, Base Monthly Rental shall be composed of
two (2) components: (i) Net Rental which is defined as the total Base Monthly
Rental less operating expenses per square foot of the Premises for the first
twelve (12) months of the term of this Lease, and (ii) Remaining Rental which is
defined as the remainder of Base Monthly Rental other than Net Rental, such that
Net Rental and Remaining Rental when combined shall equal the total Base Monthly
Rental. Commencing one year from the date of the initial Lease term hereof and
continuing on the same day of each year during the initial and any renewal term
hereof, the Net Rental component of Base Monthly Rental, as increased by
previous rental adjustments hereunder, shall be increased by the lesser of the
following: (i) the amount of the CPI Increase, as this term is defined below; or
(ii) two and one-half percent (2-1/2%).
As used in this Section 6, the term "Lease Year" shall mean the twelve
(12) month period commencing on the Commencement Date for the initial floor of
the Building, or, if the Commencement Date is not on the first day of the
calendar month, commencing on the first day of the first calendar month
following the Commencement Date, and each successive twelve (12) month period
thereafter during the Term. The term "Subsequent Year" shall mean each Lease
Year of the Term following the first Lease Year. The term "Prior Year" shall
mean the Lease Year prior
-6-
to the Subsequent Year. The term "Index" shall mean the Consumer Price
Index-Seasonally Adjusted U.S. City Average for All Urban Consumers (Base Year
1982-1984 = 100) published by the Bureau of Labor Statistics of the United
States Department of Labor. The term "Base Month" shall mean the calendar month
which is two (2) months prior to the month during which the Lease is fully
executed by Landlord and Tenant. The term "Comparison Month" shall mean the
calendar month which is two (2) months prior to the first full month of each
Subsequent Year in question. On the first day of each Subsequent Year, the CPI
Increase shall be calculated as follows: the Net Rental component of Base
Monthly Rental shall be increased to an amount equal to Net Rental for the first
Lease Year plus an amount equal to the product often (10) times the percentage
increase in the Index for the Comparison Month as compared to the Index for the
Base Month multiplied by Net Rental for the first Lease Year; provided, however,
in no event shall Net Rental for a Subsequent Year be less than Net Rental
applicable to the Prior Year. In the event the Base Year (1982-1984 = 100) used
in computing the Index is changed, the figures used in making the adjustment
above shall accordingly be changed. Likewise, if the Index is discontinued, the
index increase shall be in accordance with an industry wide standard for
measuring the cost of living increase and used at the time of such
discontinuation acceptable to Landlord.
An estimated annual rent schedule of the Net Rental annual rate and
Base Rental Amounts, assuming an annual escalation of two and one-half percent
(2-1/2%) per year in Net Rental occurs pursuant to this Section 6 and assuming
operating expenses for the first year of the Term of this Lease are $4.87 per
square foot of the Premises, is set forth in the illustrative chart below:
MONTHLY BASE ANNUAL BASE NET RENTAL
LEASE YEAR PERIOD RENTAL RENTAL RATE (P.S.F.)
---------- ------ ------------- ----------- ------------
1 6-1-03 to 8-31-03 $ 39,483.33 $ 473,800.00 $20.88
9-1-03 xx 00-00-00 $ 73,816.67 $ 885,800.00 $20.88
12-01-03 to 5-31-04 $108,150.00 $1,297,800.00 $20.88
2 6-1-04 to 5-31-05 $110,334.00 $1,324,008.00 $21.40
3 6-1-05 to 5-31-06 $112,602.00 $1,351,224.00 $21.94
4 6-1-06 to 5-31-07 $114,912.00 $1,378,94400 $22.49
5 6-1-07 to 5-31-08 $117,264.00 $1,407,168.00 $23.05
6 6-1-08 to 5-31-09 $119,616.67 $1,436.400.00 $23.63
7 6-1-09 to 5-31-10 $122,178.00 $1,466,136.00 $24.22
8 6-1-10 to 5-31-11 $124,740.00 $1,496,880.00 $24.83
9 6-1-11 to 5-31-12 $127,344.00 $1,528,128.00 $25.45
10 6-1-12 to 5-31-13 $130,032.00 $1,560,384.00 $26.09
-7-
The foregoing assumes that the Premises is completed and occupied in
the sequence of first floor, 18,400 square feet; second floor, 16,000 square
feet; and third floor, 16,000 square feet, and in accordance with the targeted
Commencement Dates of Special Stipulation 2(b) (without Tenant having
accelerated the target Commencement Dates to earlier dates) and that the
increases in Net Rental under Section 6 of the Lease are two and one-half
percent (2-l/2%) per year for each and every year commencing on the first (1st)
anniversary of the Commencement Date for the initial floor of the Building. The
payment obligations for Operating Expenses of Tenant are in addition to the
foregoing and the foregoing assumes the Operating Expenses for the Base Year are
$4.87 per square foot or less.
In the event actual Operating Expenses for the first year of the Term
are greater than $4.87 per square foot of the Premises, then the above Net
Rental annual rates shall be adjusted downward accordingly.
7. [RESERVED]
8. ADDITIONAL RENT, OPERATING EXPENSE ADJUSTMENT. The Operating
Expense Base Year of the rentable area of the Building shall be the calendar
year of January 1, 2003, through December 31, 2003. Subject to Section l(a)
above, the total rentable area of the Building is anticipated to be 50,400
rentable square feet. If in any calendar year after the Operating Expense Base
Year during the term hereof, the Operating Expenses of the rentable area of the
Building should exceed the Operating Expenses of the Base Year (such excess
being hereinafter referred to as the "Operating Expense Differential"), then as
additional rent for the calendar year, Tenant shall pay within thirty (30) days
after written notice by Landlord of said amount being due for each rentable
square foot of floor space leased hereunder, and in any expansion or extensions
hereof. For the purpose of this Paragraph 8, Operating Expenses are defined in
Exhibit "E" of this Lease. In addition Operating Expenses shall be adjusted and
grossed up so as to show actual Operating Expenses without computing or taking
into account-reduced costs because of first year warranties on materials and
equipment.
If during any calendar year of the Lease, the occupancy of the rentable
area of the Building averages less than one hundred percent (100%), then it is
agreed that the Operating Expense will be adjusted for such year so that all
such Operating Expenses shall be computed as though the rentable area of the
Building has been one hundred percent (100%) occupied for such calendar year.
All such expense categories will be accounted for and reported in accordance
with generally accepted accounting principles.
At any time during the term of this Lease but not later than fifteen
(15) days prior to the date an additional rental payment is due pursuant to this
Section 8, Landlord may deliver to Tenant a written estimate of any additional
rents which may be reasonably anticipated hereunder, estimated divided by the
number of months remaining in the calendar year, and Tenant shall pay as
additional rental to Landlord promptly on the first day of each month in advance
without
-8-
deduction or set off in legal tender the monthly amount called for under such
estimate from Landlord to Tenant for those months for which such additional
rental is due pursuant to this Section 8. Any such written estimate from
Landlord to Tenant, as contemplated in this paragraph, may also include amounts
reasonably estimated by Landlord to be due as a result of Landlord's replacing
light bulbs and fixtures in the Premises, as contemplated in Section 14 of this
Lease, or as a result of Landlord's paying utility bills on behalf of Tenant and
thereafter receiving reimbursement from Tenant for such payments by Landlord on
Tenant's behalf, as contemplated under Section 17 of this Lease. See Special
Stipulation 24.
Statements showing the actual Operating Expenses of the Building and
Tenant's proportionate share thereof (hereinafter referred to as "Statement of
Actual Adjustment") shall be delivered by Landlord to Tenant within one hundred
twenty (120) days after the end of any calendar year in which additional rental
was paid or due by Tenant under provisions hereof. Within thirty (30) days after
written notice by Landlord to Tenant of such Statement of Actual Adjustment,
Tenant shall pay to Landlord the amount of any rentals shown as being due and
unpaid thereon. Should such Statement of Actual Adjustment show the Tenant had
paid to Landlord an aggregate amount in excess of the additional rental due for
the preceding calendar year and Tenant is not then in default hereunder,
Landlord shall refund the amount of overpayment.
If the Term of this Lease begins on a day other than the first day of
the calendar year, or should this Lease terminate on a day other than the last
day of the calendar year, the amount shown as due by Tenant on the Statement of
Actual Adjustment shall reflect a proration based on the proportion that the
number of days this Lease was in effect during such calendar year bears to 360.
The Landlord's right to recover Operating Expenses Adjustment shall survive the
termination of this Lease.
Provided Tenant is not in default under the terms of this Lease Tenant
shall have the right to inspect Landlord's books and records with respect to
Operating Expenses and its proportionate share thereof for any preceding
calendar year. This inspection shall be completed at the Tenant's sole cost and
expense by independent, certified public accountants practicing for an
accounting firm of national prominence and for the exclusive purpose of
determining whether Landlord has complied with the terms of this Lease relating
to Operating Expenses. Should Tenant's inspection reveal that Landlord has
overstated or understated Operating Expenses an appropriate adjustment will be
made. If Tenant owes any amount to Landlord based on such adjustment, it shall
be paid to Landlord within thirty (30) days after the request thereof; if
Landlord owes any amount to Tenant based on such adjustment, such amount shall
be credited against the rent next coming due under this Lease.
9. USE OF PREMISES. The Premises shall be used for general office
purposes, and purposes related thereto (which may include a cafeteria or food
service facility for use by Tenant's employees if permitted by applicable laws,
ordinances and regulations), and no other purposes, all in accordance with the
Rules and Regulations attached hereto and incorporated herein by this
reference. The Tenant shall not use, permit or allow the Premises to be used
other than as strictly provided in this Lease and shall not use, permit or allow
the Premises or any part thereof to be used
-9-
for any unlawful purpose or otherwise in violation of any federal, state or
local statute, law, ordinance, rule or regulation, including, without
limitation, in violation of any zoning ordinances; nor shall the Tenant
knowingly permit any nuisance within the Premises or permit the Premises to be
used in any manner which will be a source of material annoyance or in any way
knowingly interfere with the peaceful possession, enjoyment and proper use of
other areas of the Building, nor shall the Premises be knowingly used in any
manner so as to vitiate the insurance or increase the rate of insurance on the
Premises or the Building, nor shall the Premises be used for any unlawful
purpose which would tend to lower the quality or character of the Building,
create unreasonable elevator loads or otherwise materially interfere with
Building operations. Not by way of limitation of the foregoing but in addition
thereto, neither the Premises nor any portion thereof shall be used or occupied
for any or all of the following: governmental or quasi-governmental offices,
spas (other than a health club or exercise facility for employees of Tenant),
massage parlors, escort services offices, retail sales purposes, classroom
facility purposes (other than in connection with Tenant's employee and client
training), schools, auto leasing or auto sales offices, equipment or appliance
repair shops, day care centers (other than for Tenant's employees' children),
nurseries, churches, or places of religious or quasi-religious worship,
religious facilities or offices of religious organizations, or retail or
wholesale sale purposes, medical research laboratories or offices for medical or
quasi-medical professionals providing medical treatments.
10. NO NUISANCE. Tenant shall conduct its business in such a
manner so as not to knowingly create any nuisance or interference with Landlord
in its operation of the Building.
11. ASSIGNMENT AND SUBLETTING. Tenant may sublease or assign any
or all of the Premises without Landlord's prior written consent; provided,
however, any assignee or subtenant of Tenant shall be bound by all of the terms,
conditions and provisions of this Lease, including, without limitation, the
provisions of Section 9 concerning use of the Premises, and Tenant shall remain
primarily liable on this Lease for the entire Term hereof and shall in no way be
released from the full and complete performance of all of the terms, obligations
(including, without limitation, those under Special Stipulation 10), covenants
and agreements contained herein. Prior to the time of any such assignment or
sublease by Tenant, Tenant shall first provide Landlord with written
notification of Tenant's intent to so assign or sublease and such written
notification from Tenant to Landlord shall include, at a minimum, the following
information regarding any applicable proposed assignee or sublessee: (i)
financial statements and other relevant financial information regarding any
proposed assignee or sublessee; (ii) the identity and type of business of such
proposed assignee or sublessee; and (iii) such proposed assignee or sublessee's
proposed use of the Premises which shall in all events be consistent and in
compliance with the permitted use provisions set forth under Section 9 above.
Landlord's consent shall not be required with respect to any such proposed
assignee or sublessee; rather, the purpose of the preceding provisions regarding
such notification and information from Tenant to Landlord shall be that of
notifying Landlord with respect to any proposed assignee or sublessee. Further,
in the event Tenant fails to comply with its obligations set forth under this
Section 11 with respect to providing such information to Landlord and otherwise
notifying Landlord as called for above under this Section 11, then any such
breach by Tenant shall be considered a nonmonetary breach pursuant to
nonmonetary event of default 16(ii) in Section 16 of this Lease which follows,
as opposed to a monetary event of default pursuant to 16(i) in Section
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16 of this Lease which follows, and accordingly, shall be subject to the notice
and cure provisions set forth in said 16(ii).
12. HOLDING OVER. Should Tenant or any of its successors in
interest continue to hold the Premises after termination of this Lease, whether
such termination occurs by lapse of time or otherwise, with Landlord's
acquiescence, and without any distinct agreement between the parties, then for
the first six (6) month period of such holding over by Tenant, such holding over
shall constitute and be construed as a tenancy at will at a monthly rental equal
to 125% of the monthly rental (including Base Monthly Rental and any adjusted
and additional rent) provided herein at the time of such termination. At all
times following the first six (6) month period of such holding over by Tenant,
such holding over shall then constitute and be construed as a month to month
tenancy at will at a monthly rental equal to one hundred fifty percent (150%) of
the monthly rental (including Base Monthly Rental and any adjusted and
additional rent). At all times during the period of such holding over by Tenant
(but only during such period of such holding over by Tenant and not prior to the
expiration of the normal term of this Lease), Tenant shall be entitled to
terminate this Lease upon thirty (30) days prior written notice to Landlord.
Similarly, at all times following the first six (6) month period of such holding
over by Tenant, Landlord shall be entitled to terminate this Lease upon sixty
(60) days prior written notice to Tenant and at all times following the
expiration of such sixty (60) day notice period from Landlord to Tenant, Tenant
shall be regarded as a tenant at sufferance and not as a tenant at will;
subject, however, to all the terms, provisions, covenants and agreements on the
part of Tenant hereunder. At all times during the period of such tenancy at
sufferance, no payments of money by Tenant to Landlord after the termination of
this Lease shall reinstate, continue, renew or extend the Term and no extension
of this Lease after the termination hereof shall be valid unless and until the
same shall be reduced to writing and signed by both Landlord and Tenant. With
respect to such tenancy at sufferance, Tenant shall be liable to Landlord for
all damage which Landlord shall suffer by reason of Tenant's holding over and
Tenant shall indemnify, defend and hold Landlord harmless against all claims
made by any other tenant or prospective tenant against Landlord resulting from
delay by Landlord in delivering possession of the Premises to such other tenant
or prospective tenant.
13. ALTERATIONS AND IMPROVEMENTS, (a) No structural alteration in,
or structural addition to, the Premises or the mechanical, electrical, or any
other systems (other than security) of the Premises will be made without first
obtaining Landlord's prior written consent, which shall not be unreasonably
withheld, conditioned, or delayed, and any such work consented to, although paid
for by Tenant, may be done by Landlord's contractor. However, in the event the
same is performed by Tenant then all such work performed by Tenant shall meet
any and all applicable building codes, and shall otherwise be performed in full
compliance with any and all applicable laws, ordinances, codes and regulations,
and further, Tenant shall (i) perform all such work in a reasonable manner; (ii)
utilize only contractors or other vendors with a first class reputation; (iii)
cause such work to be completed promptly on a lien free basis; (iv) cause such
work to be completed in compliance with all applicable laws, ordinances,
regulations and rules; (v) utilize the same or similar materials as any
materials which may be replaced; (vi) obtain Landlord's prior written approval
of all contractors, subcontractors and other vendors to be utilized by Tenant in
performing any such work; and (vii) obtain any and all required building permits
and other required approvals prior to performing any such work. Tenant shall,
however, be entitled to perform
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nonstructural alterations or nonstructural additions to the Premises and shall
be entitled to work on the security system (but not any other Building system)
without Landlord's prior written consent but subject to and in compliance with
the terms and conditions set forth in this Section 13 regarding any work
performed by Tenant.
(b) If Tenant's actions, omissions or occupancy of the
Premises shall knowingly cause the rate of fire or other insurance either on the
Building or the Premises to be increased, Tenant shall pay, as additional rent,
the amount of any such increase promptly upon demand by Landlord; and
(c) All erections, additions, fixtures and improvements,
whether temporary or permanent in character (except only the movable office
furniture of Tenant) made in or upon the Premises shall be and remain Landlord's
property and shall remain upon the Premises at the termination of this Lease by
lapse of time or otherwise, with no compensation to Tenant. At the expiration of
the Term of this Lease, Tenant shall leave the Premises broom clean and in good
condition, normal wear and tear accepted.
14. REPAIRS TO THE PREMISES. Landlord shall not be required to
make any repairs or improvements to the Premises, except roof and structural
repairs and repairs of latent defects necessary for safety and, tenantability,
together with repairs to the mechanical, electrical and power, plumbing
(including hot and cold water), HVAC, elevators and restrooms as may be
required. Tenant shall, at its own cost and expense, keep in good repair all
portions of the Premises, including but not limited to windows, interior glass,
doors, interior walls and finish work, floors and floor coverings, and
supplemental or special heating and air conditioning systems, and shall take
good care of the Premises and its fixtures and permit no waste, except normal
wear and tear with due consideration for the purpose for which the Premises are
leased. Landlord shall maintain and replace, at its cost and expense, all light
bulbs and fixtures in the Premises. To the extent Landlord incurs costs pursuant
to the preceding sentence in excess of Landlord's costs associated with the
Building's standard two foot by four foot fluorescent light fixtures and bulbs
and any other Building standard lighting, Landlord shall invoice Tenant for such
excess costs incurred by Landlord, and Tenant shall pay any and all such
invoices as additional rental in accordance with the provisions of Section 5 and
Special Stipulation 24 of this Lease. Tenant shall indemnify Landlord against
any loss, damage, or expense arising by reason of any failure of Tenant to keep
the Premises in good repair and tenantable condition as expressly required
herein or due to any act or neglect of Tenant, its agents, employees,
contractors, invitees, licensees, tenants, or assignees. If Tenant fails to
perform after five (5) days prior written notice from Landlord to Tenant that
any such maintenance or repair is required (except in the event of emergency in
which event no such prior written notice shall be required), or cause to be
performed, such maintenance and repairs, then at the option of Landlord, in its
sole discretion, any such maintenance or repair may be performed or caused to be
performed by Landlord and the cost and expense thereof charged to Tenant, and
Tenant shall pay the amount thereof to Landlord on demand as additional rental.
Tenant shall promptly report to Landlord in writing any damage to, or defective
condition in or about the Building or Premises known to Tenant.
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15. LANDLORD'S RIGHT TO ENTER PREMISES. Tenant shall not change
the locks on any entrance to the Premises without prior written notice to
Landlord, and in this event, Tenant shall provide copy keys to Landlord to the
Premises; provided, however, Tenant shall have the right to utilize a card
access system for entry to the Premises to which Landlord shall be subject but
Landlord shall at all times have full access to the Premises and Building.
However, notwithstanding the foregoing, Landlord and Tenant will agree upon
certain limited specific areas of the Premises which will be off limits to
Landlord at all times with such agreement by Landlord and Tenant to be reflected
in an amendment to this Lease. Designated agents, employees, and contractors of
Landlord shall have the right to enter the Premises upon one (1) business day
prior written notice from Landlord to Tenant (except in the event of emergency
in which event no such notice shall be required), at such times as Landlord
deems reasonably necessary, to make necessary repairs, additions, alterations,
and improvements to the Premises or the Building, including, without limitation,
the erection, use, and maintenance of pipes and conduits. Landlord shall also be
allowed to take into and through the Premises any and all needed materials that
may be required to make such repairs, additions, alterations, and improvements,
all without being liable to Tenant in any manner whatsoever. During such time as
work is being carried on in or about the Premises, provided such work is carried
out in a manner so as not to interfere unreasonably with the conduct of Tenant's
business therein, the rent provided herein shall in no way xxxxx, and Tenant
waives any claim and cause of action against Landlord for damages by reason of
loss or interruption to Tenant's business and profits therefrom because of the
prosecution of any such work or any part thereof. In the event of emergency, or
if otherwise necessary to prevent injury to persons or damage to property, such
entry to the Premises may be made by force without any liability whatsoever on
the part of Landlord for damage resulting from such forcible entry.
16. DEFAULT AND REMEDIES. The following events shall be deemed to
be events of default by Tenant under this Lease: (i) Tenant shall fail to pay
any installment of Base Monthly Rental, Additional Rent or any other charge or
assessment against Tenant pursuant to the terms hereof within ten (10) days
after notice thereof to Tenant; (ii) Tenant shall fail to comply with any term,
provision, covenant or warranty made under this Lease by Tenant, other than the
payment of the Base Monthly Rental or additional rent or any other charge or
assessment payable by Tenant, and shall not cure such failure within thirty
(30) days after notice thereof to Tenant except that if such matter, by its
nature, requires more than thirty (30) business days to cure, then Tenant shall
be entitled to additional time (but not to exceed an additional forty-five (45)
business days) provided Tenant commences such cure promptly and diligently
pursues such cure to completion in all events within such additional forty-five
(45) business day period; (iii) Tenant or any guarantor of this Lease shall make
a general assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts as they become due, or shall file a petition in
bankruptcy, or shall be adjudicated as bankrupt or insolvent, or shall file a
petition in any proceeding seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, or shall file an answer admitting or fail
timely to contest the material allegations of a petition filed against it in any
such proceeding; (iv) a proceeding is commenced against Tenant or any guarantor
of this Lease seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, and such proceeding shall not have been
dismissed within sixty (60) business days after the commencement thereof; (v) a
receiver or trustee shall be appointed for
-13-
the Premises or for all or substantially all of the assets of Tenant or of any
guarantor of this Lease; or (vi) Tenant shall fail to take possession of the
Premises as provided in this Lease; or (vii) Tenant shall knowingly do or permit
to be done anything which creates a lien upon the Premises or the Building and
such lien is not removed or discharged within thirty (30) business days after
the filing thereof.
Upon the occurrence of any of the aforesaid events of default, without
notice or demand of Tenant in any instance, Landlord shall have the option to
pursue any one or more of the following remedies:
(a) Terminate this Lease by giving Tenant notice of
termination, in which event this Lease shall expire and terminate on the date
specified in such notice of termination, with the same force and effect as
though the date so specified were the date herein originally fixed as the
termination date of the Term of this Lease, and all rights of Tenant under this
Lease and in and to the Premises shall expire and terminate, and Tenant shall
remain liable for all obligations under this Lease arising up to the date of
such termination, and Tenant shall surrender the Premises to Landlord on the
date specified in such notice and if Tenant fails to do so, Landlord may without
prejudice to any other remedy which it may have for possession or arrearage in
rent, enter upon and take possession of the Premises and expel or remove Tenant
and any other person who may be occupying the Premises or any portion thereof.
(b) Landlord may immediately, or at any time thereafter
so long as such event of default remains uncured, terminate this Lease, and in
the event this Lease is so terminated, Landlord shall be entitled to recover
forthwith against Tenant, as liquidated damages and not as a penalty, the
present value determined by application of a reasonable discount rate selected
by Landlord of the Aggregate Gross Rent (defined below) and the actual or
estimated (as reasonably determined by Landlord) Reletting Costs (defined below)
less the aggregate fair market rental value of the Premises for what otherwise
would have been the unexpired balance of the Lease Term (Landlord and Tenant
hereby agreeing that Landlord's actual damages in such event are impossible to
ascertain and the amount set forth hereinabove as Landlord's liquidated damages
is a reasonable estimate of the amount of actual damages which Landlord probably
would suffer). In determining the aggregate fair market rental value pursuant to
the preceding sentence, the parties hereby agree that all relevant factors shall
be considered as of the time Landlord seeks to enforce such remedy, including,
but not limited to, (i) the length of time remaining in what otherwise would
have been the unexpired balance of the Lease Term (exclusive of renewals and
extensions), (ii) the then current market conditions in the metropolitan
Atlanta, Georgia area, (iii) the likelihood of reletting the Premises for a
period of time equal to what otherwise would have been the unexpired balance of
the Lease Term, (iv) the net effective rental rates (taking into account all
concessions) then being obtained for space of similar type and size in similar
type buildings in the metropolitan Atlanta, Georgia area, (v) the vacancy levels
in comparable quality multi-tenant office buildings in the metropolitan Atlanta,
Georgia area, (vi) the anticipated duration of the period the Premises will be
unoccupied prior to the reletting, (vii) the anticipated cost of reletting, and
(viii) the current levels of new construction of multi-tenant office buildings
in the metropolitan Atlanta, Georgia area that will be completed during the
period in what otherwise would have been the unexpired balance of the Lease Term
and the degree to which
-14-
such new construction will likely affect vacancy rates and rental rates in
comparable quality multi-tenant office buildings in the metropolitan Atlanta,
Georgia area. In, the event Landlord shall relet the Premises for the period
which otherwise would have constituted the unexpired portion of the Term (or any
part thereof), the amount of rent and other sums payable by the tenant
thereunder shall be deemed prima facie to be the rental value for the Premises
(or the portion thereof so relet) for the Lease Term of such reletting. Tenant
shall in no event be entitled to any rents collected or payable in respect of
any reletting, whether or not such rents shall exceed the Base Monthly Rental
and any additional rent reserved in this Lease. As used herein, the term
"Aggregate Gross Rent" shall mean the Base Monthly Rental and any additional
rent and any other sums due hereunder as of the date of termination of this
Lease plus the Base Monthly Rental and any additional rent which would have been
owing by Tenant hereunder for the balance of the Lease Term had this Lease not
been terminated, less the net proceeds, if any, received as a result of any
reletting of the Premises by Landlord subsequent to such termination, after
deducting all of Landlord's expenses including, without limitation, all
repossession costs, brokerage commissions, legal expenses, attorneys' fees,
expenses of employees, alteration and repair costs and expenses of preparation
for such reletting (collectively, the "Reletting Costs").
(c) Without terminating this Lease, terminate Tenant's
right of possession and enter into and upon and take possession of the Premises
or any part thereof, and at Landlord's option, expel and remove persons and
property therefrom by entry (including the use of force if necessary),
dispossessing suit or otherwise, without thereby releasing Tenant from any
liability hereunder, without terminating this Lease, and without being liable to
prosecution or any claim for damages therefor. Such property, if any, may be
removed and stored in a warehouse or elsewhere at the cost of, and for the
account of Tenant, all without being deemed guilty of trespass or becoming
liable for any loss or damage which may be occasioned thereby, and Landlord may,
but shall be under no obligation to do so relet the Premises or any portion
thereof in Landlord's or Tenant's name, but for the account of Tenant, with or
without advertisement, and by private negotiations, and receive the rent
therefore, and for any term and upon such terms and conditions as Landlord may
deem necessary or desirable. Landlord shall in no way be responsible or liable
for any rental concessions or any failure to lease the Premises or any part
thereof, or for any failure to collect any rent due upon such reletting. Upon
each such reletting, all rentals received by Landlord from such reletting shall
be applied as follows: first, to the payment of any indebtedness (other than any
amounts due hereunder) from Tenant to Landlord; second, to the payment of any
costs and expenses of such reletting, including, without limitation, brokerage
fees and attorneys' fees and costs of alterations and repairs (Tenant agreeing
that Landlord shall have the right to make such alterations and repairs as, in
Landlord's judgement, may be necessary to relet the Premises); third, to the
payment of rental 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 amounts due hereunder as the same may become due and
payable hereunder. In reletting the Premises as aforesaid, Landlord may grant
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. No such reletting shall be
construed as an election by Landlord to terminate this Lease unless a written
notice of such election has been given to Tenant by Landlord. Notwithstanding
any such reletting without termination, Landlord
-15-
may at any time thereafter elect to terminate this Lease for any such previous
event of default provided same has not been cured. Notwithstanding anything
contained herein to the contrary, no termination of Tenant's right of possession
of the Premises by dispossessory action or otherwise shall release Tenant from
the performance of Tenant's obligations under this Lease, including, without
limitation, the timely payment of all rent reserved hereunder for the balance of
the Term of this Lease following such termination of Tenant's right of
possession, and Tenant agrees to so perform said obligations.
(d) Without liability to Tenant or any other party and
without constituting a constructive or actual eviction, suspend, or discontinue
furnishing or rendering to Tenant any property, material, labor, utilities or
other service, wherever Landlord is obligated to furnish or render the same, so
long as Tenant is in default under this Lease.
(e) Allow the Premises to remain unoccupied and collect
Base Monthly Rental and other charges due hereunder from Tenant as they come
due.
(f) Landlord may perform, as agent for and at the expense
of Tenant, any obligation of Tenant under this Lease which Tenant has failed to
perform and of which Landlord shall have given Tenant notice and opportunity to
cure as provided herein, the cost of which performance by Landlord together with
interest thereon at the default rate from the date of such expenditure, shall be
deemed additional rental and shall be payable by Tenant to Landlord upon demand,
and Tenant agrees that Landlord shall not be liable for any damages resulting to
Tenant from such action, whether caused by negligence of Landlord or otherwise.
(g) Landlord may exercise any other legal or equitable
right or remedy which it may have, including, but not limited to Landlord's
right judicially to obtain possession pursuant to Georgia statutory laws.
Any costs and expenses incurred by Landlord (including, without
limitation, reasonable (non-statutory) attorneys' fees actually incurred) in
successfully enforcing any of its rights or remedies under this Lease shall be
deemed additional rent and shall be repaid to Landlord by Tenant demand.
Pursuit of any of the foregoing remedies shall not preclude pursuit of
any other remedy herein provided or any other remedy provided by law or at
equity, nor shall pursuit of any remedy herein provided constitute an election
of remedies thereby excluding the later election of an alternate remedy, or a
forfeiture or waiver of any Base Monthly Rental, additional rent or other
charges and assessments payable by Tenant and due to Landlord hereunder or of
any damage accruing to Landlord by reason or violation of any of the terms,
covenants, warranties and provisions herein contained. No course of dealing
between Landlord and Tenant or any failure or delay on the part of Landlord in
exercising any rights of Landlord under this paragraph, or under any other
provisions of this Lease, shall operate as a waiver of any rights of Landlord
hereunder or under any other provisions of this Lease, nor shall any waiver of
an event of default oh one occasion operate as a waiver of any subsequent event
of default or of any other event of default.
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No express waiver shall affect any condition, covenant, rule, or regulation
other than the one specified in such waiver and that one only for the time and
in the manner specifically stated.
If this Lease is terminated by Landlord pursuant to clause (b) above,
"present value" may be computed by discounting the amount of such excess to
present worth at a discount rate equal to one percent (1%) above the discount
rate then in effect at the Federal Reserve Bank of Atlanta, Georgia. Neither the
commencement of any action or proceeding, nor the settlement thereof, nor entry
of judgment thereon shall bar Landlord from bringing subsequent actions or
proceedings from time to time, nor shall the failure to include in any action or
proceeding any sum or sums then due be a bar to the maintenance of any
subsequent actions or proceedings for the recovery of such sum or sums so
omitted. Landlord's pursuit of any remedy or remedies, including, without
limitation, any one or more of the remedies stated above, shall not (i)
constitute an election of remedies or preclude pursuit of any other remedy or
remedies provided in this Lease or separately or concurrently or in any
combination, or (ii) serve as the basis for any claim of constructive eviction,
or allow Tenant to withhold any payments under this Lease.
The failure of Landlord to insist upon strict performance of any of the
terms, conditions and covenants herein shall not be deemed to be a waiver of any
subsequent breach or default in the terms, conditions, and covenants herein
contained except as may be expressly waived in writing.
Landlord shall in no event be in default in the performance of any of
its obligations in this Lease unless and until Landlord shall have failed to
perform such obligation within thirty (30) days or such additional time as is
reasonably required to correct any such default, after notice by Tenant to
Landlord properly specifying wherein Landlord has failed to perform any such
obligation.
If Tenant shall at any time be in default hereunder, and if Landlord
shall deem it necessary to engage attorneys to enforce Landlord's rights
hereunder, the determination of such necessity to be in the reasonable
discretion of Landlord or if Landlord is made a party to litigation involving or
pertaining to Tenant due to no fault of Landlord, then Tenant will reimburse
Landlord for the reasonable expenses incurred thereby, including but not limited
to court costs and reasonable attorneys' fees and other legal expenses.
Tenant hereby covenants that, prior to the exercise of remedies, it
will give the holder of any Mortgage (as defined below) notice and thirty (30)
days to cure said default unless said default cannot be cured within thirty (30)
days, in which case such holder shall have the right, but not the obligation, to
commence and to diligently prosecute the cure of Landlord's default.
17. LANDLORD'S SERVICES. Landlord shall furnish the following
services to Tenant during the Term of this Lease:
(a) Janitor service shall be provided Monday through Friday of
each week, exclusive of New Years Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day and Christmas Day, pursuant to specifications therefor
described on Exhibit "G" attached hereto and incorporated herein by reference.
The janitorial staff shall be subject to Tenant's security clearance procedures
for the Premises. Additionally, Tenant shall have the right to replace the
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janitorial services provided by Landlord, and if Tenant so elects, then the
rental under this Lease shall be reduced by Landlord's previous cost in
providing such janitorial services as documented by an amendment to this Lease
to be executed by Landlord and Tenant.
Tenant will design Tenant's electrical system serving any equipment
producing nonlinear electrical loads to accommodate such non-linear electrical
loads, including, but not limited to, over-sizing neutral conductors, de-rating
transformers and/or providing power line filters. Tenant's final contract
documents for the Tenant Improvements (as defined in the Work Letter) shall
include a calculation of Tenant's fully connected design load with and without
demand factors and shall indicate the number of xxxxx of un-metered and
sub-metered loads.
The design and installation of any additional electrical equipment (or
any related meter) required by Tenant shall be subject to the prior approval of
Landlord (which approval shall not be unreasonably withheld). All expenses
incurred by Landlord in connection with the review and approval of any
additional electrical equipment shall also be reimbursed to Landlord by Tenant.
If any of Tenant's electrical equipment requires conditioned air in
excess of Building Standard air conditioning, the same shall be installed by
Tenant at Tenant's sole cost in a manner previously approved by Landlord in
writing, and Tenant shall pay all design, installation, metering and operating
costs relating thereto.
To the extent the services described hereinabove require electricity
and water supplied by public utilities, Landlord's covenants thereunder shall
only impose on Landlord the obligation to use its good faith, reasonable efforts
to cause the applicable public utilities to furnish the same. All of the
services (other than janitorial) contemplated under this Section 17 as well as
any other applicable utility services shall be provided by Landlord to Tenant
solely at Tenant's cost, and in no event, notwithstanding any other provision of
this Lease to the contrary, shall Landlord incur any costs whatsoever associated
with utility invoices from the applicable utilities. Rather, Landlord's only
responsibility shall be to receive and remit payment for such invoices on
Tenant's behalf to be reimbursed by Tenant in accordance with the following: In
the course of Landlord's management of the Building, Landlord shall receive and
remit payment for the utility invoices associated with the services set forth
under this Section 17, and Tenant shall reimburse Landlord for such payments
made by Landlord on Tenant's behalf within fifteen (15) days of Landlord's
presentation of Landlord's invoice to Tenant associated with Landlord's payment
on Tenant's behalf of any such utility payments. SEE SECTION 8 AND SPECIAL
STIPULATION 24. Landlord's management of the Building shall include landscaping
and other services commensurate with the following standard: such management
shall be in a first class manner comparable to other office properties in the
Central Perimeter Office Market of Atlanta, Georgia. See SPECIAL STIPULATION 16.
18. WINDOW DRESSINGS. All exterior windows of the Premises shall
be equipped only with Building-standard blinds provided by the Landlord. Tenant
may install other window treatments so long as same have solid white linings and
so long as the Building-standard blinds remain affixed between the window glass
and the other window treatments.
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19. TELEPHONE SERVICE. Tenant acknowledges and agrees that
securing and arranging for telephone service to the Premises is the sole
responsibility of Tenant and that Landlord has no responsibility or obligation
to provide or arrange such telephone service.
20. DESTRUCTION OF PREMISES. Should the Premises be so damaged by
fire or other cause that rebuilding or repairs cannot, in the estimation of
Landlord, be completed within one hundred twenty (120) days from the date of the
fire, or other cause of damage, then either Landlord or Tenant may terminate
this Lease by written notice to the other given within thirty (30) days of the
date of such damage or destruction, in which event rent shall be abated from the
date of such damage or destruction. However, if the damage or destruction is
such that rebuilding or repairs can be completed within one hundred twenty (120)
days, Landlord covenants and agrees, subject to the provisions of this
paragraph, to make such repairs with reasonable promptness and dispatch within
such one hundred twenty (120) day period, and to allow Tenant an abatement in
the Base Monthly Rental for such time as the Premises are untenantable or
proportionately for such portion of the Premises as shall be untenantable, and
Tenant covenants and agrees that the terms of this Lease shall not be otherwise
affected. In no event shall Landlord be required to repair or replace any trade
fixtures, furniture, equipment or other property belonging to Tenant nor shall
Landlord be required to rebuild, repair or replace any part of the partitions,
fixtures, additions, or other improvements which may have been placed in or
about the Premises by Tenant. Notwithstanding anything to the contrary contained
in this paragraph, Landlord shall not have any obligation whatsoever to repair,
reconstruct or restore the Premises when the damage resulting from any casualty
contained under this paragraph occurs during the last six (6) months of the Term
of this Lease, but rent shall xxxxx to the extent set forth above in this
Section 20 until such repairs are completed.
21. CONDEMNATION. If the whole of the Premises or access to the
Premises, or such portion thereof, as will make Premises unusable for the
purposes herein leased, be condemned by any legally constituted authority for
any public use or purpose, then, in either of said events, the Term hereby
granted shall cease from the date when possession thereof is taken by public
authorities, and rental shall be accounted for as between Landlord and Tenant as
of said date. Such termination, however, shall be without prejudice to the
rights of either Landlord or Tenant to recover compensation and damage caused by
condemnation from the condemnor; provided, however, Tenant shall not be entitled
to claim compensation for items which would reduce Landlord's award.
22. INSURANCE. Landlord shall insure the initial Tenant
Improvements to the Premises. Subject to the foregoing, Tenant shall insure
subsequent alterations, additions, and improvements to the Premises and shall
otherwise carry the required insurance under this Lease as follows: Tenant shall
carry fire and extended coverage insurance insuring Tenant's interest in its
improvements and betterment to the Premises and any and all furniture,
equipment, supplies, and other property owned, leased, held, or possessed by it
and contained therein, against loss or damage by fire, flood, windstorms, hail,
earthquakes, explosion, riot, damage from aircraft and vehicles, smoke damage,
vandalism, and malicious mischief and such other risks as are from time to time
covered under "extended coverage" endorsements and special extended coverage
endorsements
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commonly known as "all risks" endorsements, such insurance coverage to be hi an
amount equal to the full replacement value of such improvements and property.
Tenant also agrees to carry a policy or policies of workers'
compensation and commercial general liability insurance, including personal
injury and property damage in an amount of not less than Two Million and No/100
Dollars ($2,000,000.00) for the property damage and Five Million and No/100
Dollars ($5,000,000.00) per occurrence for personal injuries or deaths of
persons occurring in or about the Premises. Said policies shall: (i) name
Landlord, its agents and mortgagees as additional insureds and insure Landlord's
contingent liability under this Lease (except for the workers' compensation
policy, which shall instead include waiver of subrogation endorsement in favor
of Landlord); (ii) be issued by an insurance company which is acceptable to
Landlord and licensed to do business in the State of Georgia and maintains an
A.M. Best credit rating of "B+" or better; and (iii) provide that said insurance
shall not be cancelled unless thirty (30) days' prior written notice shall have
been given to Landlord. Said policy or policies, or certificate thereof, shall
be delivered to Landlord by Tenant upon commencement of the Term of the Lease
and upon each renewal and/or modification of said insurance. If during the Term
or any extension thereof additional coverage and/or higher limits of insurance
than those mentioned above shall be deemed necessary by Landlord, Tenant shall
procure such additional coverage provided such additional coverage is
appropriate, customary and generally required for like premises utilized for
similar purpose. If Tenant shall fail at any time to procure and/or maintain the
insurance required herein, Landlord may, at its option, procure such insurance
on Tenant's behalf and the cost thereof shall be payable upon demand, as
additional rent. Payment by Landlord of any insurance premium or the carrying by
Landlord of any such insurance policy shall not be deemed to waive or release
the default of Tenant with respect thereto.
Landlord shall procure and maintain at its expense (but with the
expense to be included in Operating Expenses) throughout the Term a policy or
policies of special form/all risk insurance covering the Building including the
initial Tenant Improvements in the Premises up to the amount of the Tenant
Improvement Allowance, but excluding Tenant's personal property and equipment,
in an amount equal to the full insurable replacement costs thereof as such may
increase from time to time (but such insurance may provide for a commercially
reasonable deductible), and in an amount sufficient to comply with any
coinsurance requirements in such policy, and a policy of worker's compensation
insurance, if any, as required by applicable law. In addition, Landlord shall
procure and maintain at its expense (but with the expense to be included in
Operating Expenses) and shall thereafter maintain throughout the Term, a
commercial general liability insurance policy covering the Building with
combined single limits for damage to property and personal injury of not less
than One Million Dollars ($1,000,000.00) per occurrence, subject to annual
aggregate limits of not less than Two Million Dollars ($2,000,000.00). Landlord
may also carry such other types of insurance in form and amounts which Landlord
shall determine to be appropriate from time to time, and the costs thereof shall
be included in Operating Expenses. All such policies procured and maintained by
Landlord pursuant to this Section 22 shall be carried with companies licensed to
do business in the State of Georgia. Any insurance required to be carried by
Landlord hereunder may be carried under blanket policies covering other
properties of Landlord and/or its members and/or their respective related or
affiliated corporations and entities as long as such blanket policies provide
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insurance at all times for the Building as required by this Lease. Tenant shall
be named as an additional insured on all such insurance carried by Landlord with
respect to the Building.
23. WAIVER OF SUBROGATION. Landlord and Tenant each hereby
releases the other from any and all liability or responsibility to the other or
anyone claiming through or under them by way of subrogation or otherwise for any
loss or damage to property caused by fire or any other perils that is insured
against or that are required to be insured against under the terms of the Lease,
even if such loss or damage shall have been caused by the fault or negligence of
the other party, or anyone for whom such party may be responsible, including,
without limitation, any other tenants or occupants of the remainder of the
Building in which the Premises are located; provided, however, that this release
shall be applicable and in force and effect only to the extent that such release
shall be lawful at that time and in any event only with respect to loss or
damage occurring during such time as the releaser's policies shall contain a
clause or endorsement to the effect that any such release shall not adversely
affect or impair said policies or prejudice the right of the releaser to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. Landlord and Tenant each agrees that it will request its
insurance carriers to include in its policies such a clause of endorsement. If
extra cost shall be charged therefor, each party shall advise the other thereof
and of the amount of the extra cost, and the other party, at its election, may
pay the same, but shall not be obligated to do so. If such other party fails to
pay such extra costs, the release provisions of this paragraph shall be
inoperative against such other party to the extent necessary to avoid
invalidation of such releaser's insurance.
24. NO ESTATE IN LAND. This contract 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.
25. INDEMNITY. Excepting for the willful acts or negligence of
Landlord, its agents and employees, Tenant indemnifies and shall hold Landlord,
its agents and employees, harmless from and defend Landlord, its agents,
officers, directors, partners, attorneys and employees, against any and all
claims or liability for injury or death to any person or damage to any property
whatsoever:
(a) either (i) occurring in, on, or about the Premises;
or (ii) occurring in, on, or about any facilities (including, without
limitation, elevators, stairways, passageways or hallways) the use of which
Tenant may have in conjunction with other occupants of the Building, when such
injury, death or damage shall be caused in part or in whole by the act, neglect
or fault of, or omission of any duty with respect to the same by Tenant, its
agents, employees, contractors, invitees, licensees, tenants, or assignees; or
(b) arising from any work or thing whatsoever done by or
benefiting the Tenant in or about the Premises or from transactions of the
Tenant concerning the Premises; or
(c) arising from any breach or default on the part of the
Tenant in the performance of any covenant or agreement on the part of the Tenant
to be performed pursuant to the terms of this Lease; or
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(d) otherwise arising from any act or neglect of the
Tenant, or any of its agents, employees, contractors, invitees, licensees,
tenants or assignees; and from and against all costs, expenses, counsel fees,
and court costs incurred or assessed in connection with any or all of the
foregoing. Furthermore, in case any action or proceeding be brought against
Landlord by reason of any claims or liability, Tenant agrees to cause such
action or proceeding to be defended at Tenant's sole expense by counsel
reasonably satisfactory to Landlord. The provisions of this Lease with respect
to any claims or liability occurring or caused prior to any expiration or
termination of this Lease shall survive such expiration or termination.
Tenant shall give immediate notice to Landlord in case of casualty or
accidents in the Premises. The provisions of this paragraph shall survive the
expiration or sooner termination of this Lease.
Except for the willful acts or negligence of Tenant, its agents,
contractors, employees, invitees, licensees, visitors, and customers, Landlord
hereby indemnifies and shall hold Tenant harmless from and defend Tenant against
any and all claims or liability for injury or death to any person or damage to
any property whatsoever arising from any breach or default on the part of
Landlord in the performance of any covenant or agreement on the part of Landlord
to be performed pursuant to the terms of this Lease.
26. LIABILITY OF LANDLORD. Subject to the provisions of Special
Stipulations 15 and 16, Landlord shall not be liable to Tenant or to any
persons, firm, corporation, or other business association claiming by, through,
or under Tenant for failure to furnish or for delay in furnishing any service
provided for in this Lease, and no such failure or delay by Landlord shall be an
actual or constructive eviction of Tenant nor shall any such failure or delay
operate to relieve Tenant from the prompt and punctual performance of each and
all the covenants to be performed herein by Tenant; nor for water discharged
from sprinkler systems, if any, or from water pipes and plumbing facilities in
the Building; nor for the theft, mysterious disappearance, or loss of any
property of Tenant whether from the Premises or any part of the Building; and
nor from interference, disturbance, or acts to or omitted against Tenant by
third parties, including, without limitation other occupants of the Building and
any such occurrences shall not constitute an actual or constructive eviction of
Tenant.
27. LIMITATION OF LIABILITY. Landlord's obligations and liability
with respect to this Lease shall be limited solely to Landlord's interest in the
Building any insurance proceeds received by Landlord in connection therewith to
the extent not yet applied by Landlord, as such interest is constituted from
time to time, and neither Landlord nor any officer, director, shareholder, or
partner of Landlord, or of any partner of Landlord, shall have any personal
liability whatsoever with respect to this Lease. In no event shall Landlord be
liable to Tenant nor shall any interest of Landlord in the Building be subject
to execution by Tenant, for any indirect, special or consequential damages.
28. NO WAIVER OF RIGHTS. No failure or delay of Landlord to
exercise any right or power given it herein or to insist upon strict compliance
by Tenant of any obligation imposed on it herein and no custom or practice of
either party hereto at variance with any term hereof shall
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constitute a waiver or a modification of the terms hereof by Landlord or any
right it has herein to demand strict compliance with the terms hereof by Tenant.
No person has or shall have any authority to waive any provision of this Lease
unless such waiver is expressly made in writing and signed by Landlord.
29. ENTIRE AGREEMENT AND EXHIBITS. This Lease constitutes and
contains the sole and entire agreement of Landlord and Tenant and no prior or
contemporaneous oral or written representation or agreement between the parties
and affecting the Premises shall have legal effect. The content of each and
every exhibit which is referenced in this Lease as being attached hereto is
incorporated into this Lease as fully as if set forth in the body of this Lease.
30. NOTICES. All notices required or desired to be given with
respect to this Lease shall, in order to be effective, be in writing and shall
be effectively given or delivered if hand delivered to the addresses for
Landlord and Tenant specified hereinbelow, or if deposited, postage prepaid, to
the United States mail, certified, return receipt requested, properly addressed
to the addresses specified hereinbelow, or if delivered by Federal Express or
other overnight commercial courier to the addresses for Landlord and Tenant
hereinbelow. Any notice mailed or sent by overnight commercial courier shall be
deemed to have been given upon receipt or refusal thereof. Notice effected by
hand delivery shall be deemed to have been given at the time of actual delivery.
In the event of a change of address by either party, such party shall give
written notice thereof to the other party in accordance with the foregoing.
Additionally, Tenant agrees to send copies of all notices required or permitted
to be given to Landlord to each lessor under any ground or land lease covering
all or any part of the Land and each holder of a mortgage or deed to secure debt
encumbering the Building and/or the Land that notifies Tenant in writing of its
interest in the address to which notices are to be sent.
If to Tenant: INTERNET SECURITY SYSTEMS, INC.
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxx, Esq.
If to Landlord: SPRING CREEK PARTNERS, L.L.C.
c/x Xxxxxxx Management Services, Inc.
000 Xxxxx Xxxxxx Xxxxxxx,
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxx
The foregoing addresses may be changed by thirty (30) days written
notice from time to time.
Tenant hereby appoints as his agent to receive the service of all
dispossessory or distraint proceedings and notices thereunder, and all notices
required under this Lease, the person in charge of or occupying the Premises at
the time; and if no person is in charge of or occupying same, then
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such service or notice may be made by attaching the same on the main entrance to
the Premises. To the extent permitted by law, Tenant hereby submits to the
jurisdiction of any state or federal court located in Xxxxxx County, Georgia, as
well as to the jurisdiction of all courts from which an appeal may be taken from
the aforesaid courts for the purpose of any suit, action or other proceeding
arising out of Tenant's obligations under or with respect to this Lease and
Tenant hereby expressly waives any and all objections that Tenant may have as to
jurisdiction and/or venue in any of such courts.
31. SUCCESSORS AND ASSIGNS. The covenants, conditions and
agreements herein contained shall inure to the benefit of and be binding upon
Landlord, its successors and assigns, and shall be binding upon Tenant, its
heirs, executors, administrators, successors and assigns, and shall inure to the
benefit of Tenant. Nothing contained in this Lease shall in any manner restrict
Landlord's right to assign or encumber this Lease in its sole discretion. Should
Landlord assign this Lease as provided for above, Tenant shall be bound to said
conditions of this Lease for the balance of the Term hereof remaining after such
succession, and Tenant shall attorn to such succeeding party as its landlord
under this Lease promptly under any such successions. Tenant agrees that should
any party so succeeding to the interest of Landlord require a separate agreement
of attornment regarding the matters covered by this Lease, then Tenant shall
enter into any such "attornment agreement," provided the same does not modify
any of the provisions of this Lease and has no adverse effect upon Tenant's
continued occupancy of the Premises.
32. SUBORDINATION. Landlord will obtain from its lender which is
financing the construction of the Building subordination, non-disturbance and
attornment agreement between Landlord, such lender, and Tenant, to be secured
concurrently with the closing of said construction loan. Tenant agrees that this
Lease shall, subject to obtaining the aforesaid subordination, non-disturbance
attornment agreement be and remain subject and subordinate to all present and
future mortgages, deeds to secure debt or other security instruments (the
"Security Deeds") affecting the Premises provided that such future lenders will
not disturb Tenant as long as Tenant remains in full compliance with all terms
and conditions of this Lease. Tenant shall promptly execute and deliver to
Landlord such certificate or certificates in writing as Landlord may request,
confirming the subordinate nature of the Lease to such Security Deeds.
33. ESTOPPEL CERTIFICATE. Tenant shall, within ten (10) days after
request from Landlord, at any time and from time to time execute, acknowledge
and deliver to Landlord a written statement certifying as follows: (a) that this
Lease is unmodified and in full force and effect (or if there has been
modification thereof, that the same is in full force and effect as modified and
stating the nature thereof); (b) that to the best of its knowledge there are no
uncured defaults on the part of Landlord (or if any such default exists, the
specific nature and extent thereof); and (c) the date to which any rents and
other charges have been paid in advance, if any; and (d) such other matters as
Landlord may reasonably request.
34. TIME IS OF THE ESSENCE. Time is of the essence with the
respect to the performance of each of the covenants and agreements of this
Lease; provided, however, that failure of Landlord to provide Tenant with any
notification regarding adjustments in Base Monthly Rental, or any other charges
provided for hereunder, within the time periods prescribed in this Lease shall
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not relieve Tenant of its obligation to make such payments, which payments shall
be made by Tenant at such time as notice is subsequently given. Unless
specifically provided otherwise, all references to terms of days or months shall
be construed as references to calendar days or calendar months, respectively.
35. CAPTIONS; GOVERNING LAW. The captions of this Lease are for
convenience of reference only and in no way define, limit or describe the scope
or intent of this Lease. The laws of the State of Georgia shall govern the
validity, performance and enforcement of this Lease.
36. DEFINITIONS. "Landlord" as used in this Lease shall include
his heirs, representatives, assigns and successors in title to Premises.
"Tenant" shall include its heirs and representatives, and if this Lease shall be
validly assigned or sublet, shall include also. Tenant's assignees or
sublessees, as to premises covered by such assignment or sublease. "Broker" and
"Co-Broker" shall include its successors, assigns, heirs, and representatives.
"Landlord," "Tenant," "Broker" and "Co-Broker," shall include male and female,
singular and plural, corporation, partnership or individual, as may fit the
particular parties.
37. SEVERABILITY. If any clause or provision of this Lease is or
becomes illegal, invalid, or unenforceable because of present or future laws or
any rule or regulation of any governmental body or entity, effective during its
term, the intention of the parties hereto is that the remaining parts of this
Lease shall not be affected thereby, unless such invalidity is, in the sole
determination of Landlord, essential to the rights of both parties in which
event Landlord has the right to terminate this Lease on written notice to
Tenant.
38. LAWS AND REGULATIONS; BUILDING RULES AND REGULATIONS.
Subject to the provisions of Special Stipulation 7, Tenant shall comply with,
and Tenant shall cause its agents, contractors, customers, employees, invitees,
licensees, servants and visitors to comply with (i) all applicable laws,
ordinances, orders, directions, requirements, rules and regulations (state,
federal, municipal and other agencies or bodies having any jurisdiction thereof)
now in force or which may hereafter be in force, which shall impose any duty
upon Landlord or Tenant relating to the use, condition or occupancy of the
Premises or the conduct of Tenant's business therein, including, without
limitation, the Americans With Disabilities Act of 1990 (as now or hereafter
amended); and (ii) the Building Rules and Regulations set forth in Exhibit "F,"
as such Rules and Regulations are modified and supplemented by Landlord from
time to time, and such other rules and regulations as are reasonably adopted by
Landlord from time to time, for the safety, care or cleanliness of the Premises
and the Building, or for preservation of good order therein, all of which will
be sent by Landlord to Tenant in writing and shall be thereafter carried out and
observed by Tenant, its agents, contractors, customers, employees, invitees,
licensees, servants and visitors. Tenant hereby expressly waives the benefit of
all existing and future rent control laws and similar governmental rules and
regulations, whether in time of war or not, to the full extent permitted by law.
39. SPECIAL STIPULATIONS. The Special Stipulations attached hereto
are hereby incorporated herein and made a part hereof. In the event the Special
Stipulations conflict with any of the foregoing provisions of this Lease, the
Special Stipulations shall control.
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40. BROKER COMMISSION. Tenant represents and warrants to Landlord
that, other than Insignia/ESG, Inc. ("Broker"), no broker, agent, commissioned
salesperson or other person has represented Tenant in the negotiations for and
procurement of this Lease, and that no commissions, fees or compensation of any
kind are due in connection herewith to any broker, agent, commissioned
salesperson or other person, other than Broker, which has acted as broker for
Tenant in this transaction. Landlord shall pay Broker a real estate commission
in connection with this transaction pursuant to the terms of a separate written
Commission Agreement between Landlord and Broker. Landlord has disclosed that
The Xxxxxxx Company ("Co-Broker") is acting on behalf of Landlord in this
transaction and is receiving a commission pursuant to the terms of a separate
written Commission Agreement.
41. REMOVAL OF PERSONAL PROPERTY. Tenant may (if not in default
hereunder) prior to the expiration of this Lease, or any extension thereof,
remove all unattached and movable personal property and equipment which Tenant
has placed in the Premises, provided Tenant repairs all damages to Premises
caused by such removal. All personal property of Tenant remaining on the
Premises after the end of the Term shall be deemed conclusively abandoned,
notwithstanding that title to or a security interest in such personal property
may be held by an individual or entity other than Tenant, and Landlord may
dispose of such personal property in any manner it deems proper, in its sole
discretion. Tenant hereby waives and releases any claim against Landlord arising
out of the removal or disposition of such personal property. Tenant shall
reimburse Landlord for the cost of removing such personal property.
42. SIGNAGE. Subject to applicable laws, regulations, and
ordinances, Tenant, at Tenant's sole cost and expense (but with Tenant allowed
to use a portion of the Tenant Improvement Allowance as set forth in the Work
Letter attached as Exhibit "D") and subject to Landlord's prior written approval
as to the exact location and as to the plans and specifications for such
signage, shall be entitled to install signage including Tenant's corporate name
and logo on the Building with a monument sign adjacent to the Building and the
walls of elevator lobbies of the Building and on entrance doors to the Building
on any full floors of the Building leased by Tenant. The location of such
signage together with all plans and specifications for such signage shall be
provided by Tenant to Landlord subject to Landlord's prior written approval not
to be unreasonably withheld by Landlord. Subject to the foregoing, Tenant shall
not place any other signs, decals, or other materials upon the windows or suite
doors of the Premises nor on the exterior walls of Premises. Any additional
signage other than as provided for under this Section 42 desired by Tenant shall
be approved, in writing, by Landlord and the management company of the Building,
which shall be granted in their sole discretion.
43. EFFECT OF TERMINATION OF LEASE. No termination of this Lease
prior to the normal ending thereof, by lapse of time or otherwise, shall affect
Landlord's right to collect rent for the period prior to termination thereof.
44. RIGHTS CUMULATIVE. All rights, powers and privileges conferred
hereunder upon parties hereto shall be cumulative but not restrictive to those
given by law.
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45. FORCE MAJEURE. In the event of strike, lockout, labor trouble,
civil commotion, act of God, or any other cause (hereinafter collectively
referred to as "Force Majeure") outside and beyond Landlord's control, resulting
in the impairment of Landlord's ability to perform any obligation or provide any
service hereunder, this Lease shall not terminate, and Tenant's obligation to
pay Base Monthly Rental, additional rental and all other charges and sums due
payable by Tenant shall not be altered or excused and Landlord shall not be
considered to be in default under this Lease or liable in damages to Tenant in
any manner.
46. TENANT CORPORATION, PARTNERSHIP OR INDIVIDUAL. If Tenant
executes this Lease as a corporation, each of the persons executing this Lease
on behalf of Tenant does hereby covenant, warrant and represent that Tenant is a
duly organized and validly existing corporation, that Tenant has and is
qualified to do business in Georgia, that the corporation has full right and
authority to enter into this Lease, and that each and all persons signing on
behalf of the corporation were authorized to so do. Upon Landlord's request,
Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord
confirming the foregoing covenants and warranties. If Tenant executes this Lease
as a partnership, Tenant does hereby covenant, warrant and represent that all
the persons who are general or managing partners in said partnership have
executed this Lease on behalf of Tenant, or that this Lease has been executed
and delivered pursuant to and in conformity with a valid and effective
authorization therefor, by all of the general or managing partners of such
partnership, and is and constitutes the valid and binding agreement of the
partnership and each and every partner therein in accordance with its terms.
Also, it is agreed that each and every present and future partner of Tenant
shall be and shall remain at all times jointly and severally liable hereunder,
and that the death, resignation, or withdrawal of any partner shall not release
the liability of such partner under the terms of this Lease unless and until
Landlord consents in writing to such release. If Tenant executes this Lease as
an individual, Tenant does hereby covenant, warrant and represent that his legal
residence address is that set forth below his signature on this Lease. If more
than one individual or entity comprises and constitutes Tenant, then all
individuals and entities comprising Tenant are and shall each be jointly and
severally liable for the due and proper performance of Tenant's covenants,
duties and obligations arising under or in connection with this Lease.
47. SUBMISSION OF LEASE. The submission of this Lease for
examination does not constitute an offer to lease nor a reservation of space
even if said lease is executed by Landlord, and this Lease shall be effective
only upon execution hereof by Landlord and Tenant.
48. NO RECORDATION OF LEASE. This Lease is not in recordable form,
and Tenant agrees not to record or permit the recording of this Lease or other
evidence thereof except that Tenant shall be entitled to record a memorandum of
this Lease, previously approved in writing by Landlord, which memorandum shall
provide that this Lease is subject to present and future lenders as set forth in
Section 32 of this Lease and subject to the terms and conditions of Section 32
of this Lease.
49. HAZARDOUS SUBSTANCES. Tenant hereby covenants and agrees that
Tenant shall not cause or knowingly permit any "Hazardous Substances" (as
hereinafter defined) to be generated, placed, held, stored, used, located or
disposed of at the Building or any part thereof,
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except for Hazardous Substances as are commonly and legally used or stored as a
consequence of using the Demised Premises for general office and administrative
purposes, but only so long as the quantities thereof do not pose a threat to
public health or to the environment or would necessitate a "response action", as
that term is defined in CERCLA (as hereinafter defined), and so long as Tenant
strictly complies or causes compliance with all applicable governmental rules
and regulations concerning the use or production of such Hazardous Substances.
For purposes of this paragraph, "Hazardous Substances" shall mean and include
those elements or compounds which are contained in the list of Hazardous
Substances adopted by the United States Environmental Protection Agency (EPA) or
the list of toxic pollutants designated by Congress or the EPA which are defined
as hazardous, toxic, pollutant, infectious or radioactive by any other federal,
state or local statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to or imposing liability (including, without limitation,
strict liability) or standards of conduct concerning, any hazardous, toxic or
dangerous waste, substance or material, as now or at any time hereinafter in
effect (collectively "Environmental Laws"). Tenant hereby agrees to indemnify
Landlord and hold Landlord harmless from and against any and all losses,
liabilities, including strict liability, damages, injuries, expenses, including
reasonable attorneys' fees, costs of settlement or judgment and claims of any
and every kind whatsoever paid, incurred or suffered by, or asserted against,
Landlord by any person, entity or governmental agency for, with respect to, or
as a direct or indirect result of, the presence in, or the escape, leakage,
spillage, discharge, emission or release from, the Demised Premises of any
Hazardous Substances (including, without limitation, any losses, liabilities,
including strict liability, damages, injuries, expenses, including reasonable
attorneys' fees, costs of any settlement or judgment or claims asserted or
arising under the Comprehensive Environmental Response, Compensation and
Liability Act ["CERCLA"], any so-called federal, state or local "Superfund" or
"Superlien" laws or any other Environmental Law); provided, however, that the
foregoing indemnity is limited to matters arising solely from Tenant's violation
of the covenant contained in this Article. The obligations of Tenant under this
Article shall survive any expiration or termination of this Lease. See Special
Stipulation 8.
50. EXECUTION. This Lease may be executed in any number of
counterparts, each of which shall be deemed an original and any of which shall
be deemed to be complete in itself and may be introduced into evidence or used
for any purpose without the production of the other counterparts. No
modification or amendment of this Lease shall be binding upon the parties hereto
unless such modification or amendment is in writing and signed by Landlord and
Tenant.
51. LANDLORD AND TENANT RELATIONSHIP. The relationship between
Landlord and Tenant shall be solely that of landlord and tenant only, and no
provision of this Lease including, without limitation, the provisions of Special
Stipulation 5 of this Lease, shall be deemed or construed by the parties hereto,
or by any third party, as creating the relationship of principal and agent, or
of partnership, or of joint venture, between the parties hereto, and
accordingly, without limiting the generality of the foregoing provisions, Tenant
shall have no authority to bind or enter into any agreements on behalf of
Landlord whatsoever.
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52. AUTHORITY. As a material inducement to Landlord to enter into
this Lease, Tenant, acknowledging that Landlord may rely on each such
representation and warranty, represent and warrant to Landlord that:
(a) the execution, delivery and full performance of this Lease by
Tenant do not and shall not constitute a violation of any
contract, agreement, undertaking, judgment, statute,
regulation, governmental or court order or other restriction
of any kind to which Tenant is or may be bound;
(b) Tenant has executed and entered into this Lease free from
fraud, undue influence, duress, coercion or other defenses to
the execution of this Lease;
(c) Tenant is duly organized, validly existing and in good
standing under the laws of the state of Georgia and has full
power and authority to enter into this Lease, to perform
Tenant's obligations under this Lease in accordance with the
terms hereof, and to transact business in the State of
Georgia; and
(d) the execution and delivery of this Lease by the individual or
individuals executing this Lease on behalf of Tenant, and
Tenant's performance of its obligations under this Lease, have
been duly authorized and approved by all necessary corporate
or partnership action, as the case may be, and Tenant's
execution, delivery and performance of this Lease are not in
conflict with Tenant's bylaws or articles of incorporation, or
other charters, agreements, rules or regulations governing
Tenant's business, as any of the foregoing may have been
supplemented, modified, amended, or altered in any manner.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
hereunder and have caused this Lease to be executed in their names and their
corporate seals to be affixed by their officers duly authorized thereunto, upon
the day and year set forth above.
Signed, sealed and delivered in the presence of: TENANT:
INTERNET SECURITY
SYSTEMS, INC.,
a Georgia corporation
/s/ Xxxxx X. Ovellete
-----------------------------------
Notary Public By: /s/ Xxxxxxx Xxxxxxx
------------------------
Xxxxx X. Xxxxxxxxx
------------------------------------ Name: Xxxxxxx Xxxxxxx
Name (Please Print) ----------------------
(Please Print)
Title: CFO
---------------------
Attest: Xxxx Xxxxx
---------------------
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Name: /s/ Xxxx Xxxxx
----------------------
(Please Print)
Title: Secretary
----------------------
[CORPORATE SEAL]
LANDLORD:
Signed, sealed and delivered SPRING CREEK PARTNERS,
in the presence of: L.L.C., A GEORGIA LIMITED
LIABILITY COMPANY
/s/ Xxxxxxxx Xxxxxxxxxxx
------------------------------------ By: /s/ Xxxx X. Xxxxxxx
Notary Public ------------------------
XXXX X. XXXXXXX, Manager
Xxxxxxxx Xxxxxxxxxxx
Name: Comm. Exp. 7-14-62
------------------------------
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XXXXX XXXXXX XXXXX
SPECIAL STIPULATIONS
1. Notwithstanding any provision of this Lease to the contrary, Landlord's
obligations under this Lease are contingent upon (a) Landlord's
securing and closing the financing for construction and development of
the Building; and, (b) upon Landlord's securing all necessary
governmental permits for the construction and development of the
Building and for the construction of the Additional Parking Level on
the Buildings 1 and 2 Parking Deck, including, necessary approval and
permits with respect to the use of the adjacent Georgia 400 right of
way, all to be upon terms and conditions satisfactory to Landlord in
its sole but reasonable discretion and to be satisfied on or before
August 1, 2001, and in the event Landlord has not satisfied both of
such contingencies on or before August 1, 2001, then Landlord shall be
entitled to terminate this Lease by written notice to Tenant in which
event neither party shall have any further liability or obligation
hereunder to the other. Upon the execution of this Lease, Landlord has
paid to Tenant a payment of $25.00 as an option payment from Landlord
to Tenant thereby making this Lease a mutually binding option agreement
notwithstanding that this Lease is not binding upon Landlord unless and
until the contingency set forth above in this Special Stipulation 1
with regard to Landlord's financing of the Building is removed. Tenant
hereby acknowledges the receipt and sufficiency of such $25.00 option
payment from Landlord to Tenant.
2. (a)) Notwithstanding any provision of this Lease to the contrary, the
Commencement Date for each portion of the Building shall be the date
the construction of the Tenant Improvements is completed for such
portion of the Building pursuant to the Work Letter (the "Work Letter")
attached hereto as Exhibit "D" and made a part hereof by reference and
a certificate of occupancy is issued by Xxxxxx County, but no earlier
than the target Commencement Dates set forth below unless Tenant gives
Landlord written notice of Tenant's need for earlier occupancy. The
targeted Commencement Dates for the portions of the Building shall be
as set forth below. However, in the event of Tenant Delay, as this term
is defined under Section 6 of the Work Letter, the Commencement Date
shall be the date construction of the Tenant Improvements would have
been completed pursuant to the Work Letter (as defined below) and a
certificate of occupancy would have been issued by Xxxxxx County had
not such Tenant Delay occurred.
(b)The following represents the agreements of Landlord and Tenant
regarding staged occupancy of the Premises and the payment of rental in
connection therewith. On the first (1st) initial Commencement Date
(with an initial target Commencement Date of June 1, 2003, with the
actual Commencement Date as determined pursuant to Paragraph 3 of this
Lease above), Tenant shall occupy and begin paying rent on one (1)
floor of the Building. Similarly, on the second (2nd) target
Commencement Date of September 1, 2003 (with the actual second
Commencement Date being determined pursuant to Paragraph 3 of this
Lease above), Tenant shall occupy and begin paying rent on an
additional floor of the Building. Similarly, on the third (3rd) and
final target Commencement Date of December 1, 2003,
(with the actual third Commencement Date being determined pursuant to
Paragraph 3 of this Lease above), Tenant shall occupy and begin paying
rent on the third (3rd) and final floor of the Building. Tenant shall
notify the Landlord on or before December 31, 2001 of the floor of the
Building to which each such target Commencement Date shall have as its
subject, and Lessor shall complete the floors of the Building in such
sequence.
(c) Notwithstanding the foregoing, Landlord and Tenant acknowledge and
agree that Tenant shall have the right by notice timely given to
Landlord to accelerate to earlier dates the target Commencement Dates
set forth above in Special Stipulation 2(b), upon the following terms
and conditions. Such notice to Landlord from Tenant shall specify the
accelerated target Commencement Date for the initial floor of the
Building and shall be given not less than fourteen (14) months prior to
the accelerated target Commencement Date for the initial floor of the
Building. If Tenant exercises such right and accelerates the target
Commencement Date for the initial floor of the Building, the target
Commencement Dates for the second (2nd) and third (3rd) floors of the
Buildings shall thereby likewise be accelerated to earlier dates by the
same number of days as the target Commencement Date for the initial
floor of the Building was accelerated in Tenant's notice.
3. Tenant shall not be liable for any increase of, or reassessment in,
real property taxes and assessments resulting from a sale, transfer,
reapportionment of proprietary interest, or any other change in
ownership of the Building or site during the Term or from major
alterations, improvements, modifications, or renovations to the
Building or site. However, subject only to the restrictions set forth
in the preceding sentence, Tenant shall remain fully liable for real
property taxes and assessments to the extent set forth in Section 8 and
Exhibit "E" of the Lease and otherwise.
4. If used by Tenant to pay for the Tenant Costs, as such term is defined
under Section 3.02 of the Work Letter attached hereto as Exhibit "D",
up to $2.50 per rentable square foot of the Premises over and above the
total $25.00 per rentable square foot Tenant Improvement Allowance, as
this term is defined in Section 3.01 of the Work Letter, may be
amortized as set forth herein and added as additional rental (over and
above the amounts of the first sixty (60) monthly installments of Base
Monthly Rental) with such amortization to be at an interest rate of ten
percent (10%) per annum over the first five (5) years of the Term of
this Lease, to the extent such extra amounts are used by Tenant to pay
for the Tenant Costs. To the extent the total $25.00 per rentable
square foot Tenant Improvement Allowance is not used in full
("Savings"), then Tenant may use such Savings for relocation expenses,
wiring expenses, telecommunication expenses and for similar items
and/or for moving expenses and/or for the permitted purposes set forth
in Section 3.01 of the Work Letter and/or Tenant may elect to have
Landlord apply up to $2.50 per rentable square foot of the Premises of
such Savings (but not in excess of up to $2.50 per rentable square foot
of the Premises of such Savings) as a credit toward Tenant's initial
rental obligations under this Lease.
5. Subject to the terms, conditions and agreements set forth in this
Special Stipulation 5, Landlord shall pay to Tenant a portion of the
net cash flow (for purposes of this Special
Stipulation 5, the term "net cash flow" shall be defined as Landlord's actual
cash flow from Landlord's operation of the Building (after the Preferred Return,
as this term is defined below, has been paid in full to each of Landlord's
members) less Landlord's payment of expenses (including debt service) in
connection with Landlord's operation of the Building and less Landlord's
maintenance of reserves in connection with Landlord's operation of the Building
subject to the limitation that any loans from Landlord's members to Landlord
shall not bear interest at a rate in excess of the Preferred Return otherwise
payable to Landlord's members from the operation of the Building, which payments
by Landlord to Tenant, the parties agree, shall constitute an expense of
Landlord in the operation of the Building (but which shall not constitute an
Operating Expense as set forth in Exhibit "E" and other applicable provisions of
this Lease) upon the following terms and conditions: Unless otherwise approved
by Tenant, Landlord's permanent financing for the Building shall contain an
amortization based upon a period of not less than twenty-five (25) years.
Landlord shall be entitled to determine the payment of all operating expenses
and the maintenance of all reserved in connection with Landlord's operation of
the Building. Each of Landlord's members has contributed and/or will from time
to time contribute cash and/or other equivalent value associated with each such
member's investment in its membership interests in Landlord and otherwise as set
forth in the operating agreement of Landlord and the books and records of
Landlord maintained in connection therewith (hereinafter the respective
contributions by each of Landlord's members are referred to respectively as
"Cash Invested"). For purposes of this Special Stipulation 5, the respective
amounts of the Cash Invested for each such member of Landlord shall not be
decreased in any respect whatsoever and shall be deemed to be entitled to a
twelve percent (12%) per annum preferred interest return ("Preferred Return") as
further set forth in this Special Stipulation 5 and shall not be diminished by
depreciation, return of capital, or any other accounting event which might
otherwise be deemed to decrease the amount of Cash Invested or the capital
account of any such member; rather, the aggregate Cash Invested, as the same may
be increased from time to time, shall in no event ever be diminished for
purposes of this Special Stipulation 5. Each member of Landlord shall be
entitled to the Preferred Return on each such member's Cash Invested from and
after the respective times of each increment of such Cash Invested by such
member, and after each such member has received such members total current
Preferred Return on any and all Cash Invested, then subject to Landlord's
payment of expenses in connection with the Building and the maintenance of
normal reserved, as determined by Landlord, the remaining net cash flow shall on
an annual basis within sixty (60) days from the expiration of each calendar
year, or more frequently if net cash flow is distributed to the members of
Landlord more frequently, be divided as follows: Landlord shall pay as an
expense of Landlord in its operation of the Building to Tenant thirty percent
(30%) of such net cash flow with the remaining seventy percent (70)% of such net
cash flow to be distributed to Landlord's members contemporaneous with the
payment of such thirty percent (30%) of net cash flow to Tenant. Such payment of
thirty percent (30%) of net cash flow from Landlord to Tenant shall continue
only for the first seven (7) years initial term of this Lease, and not
thereafter. In the event the Building is sole or refinanced during such first
seven (7) years of the initial Term of the Lease, then after the Preferred
Return is paid to Landlord's
members, Tenant shall be entitled to receive as an expense payment from Landlord
to Tenant thirty percent (30%) of the remaining net proceeds from any such sale
or refinancing (after payment in full of all outstanding security deeds on the
Premises) with the remaining 70% to be distributed to Landlord's members. At any
and all times during all terms of this Lease, Landlord shall be entitled to
determine the financing of Landlord (both temporary and permanent) in connection
with its acquisition, construction, and operation of the Building subject only
to the restriction that permanent financing shall be based on an amortization
period of not less than twenty-five (25) years as set forth above in this
Special Stipulation 5, and further, Landlord shall determine expenses to be paid
in connection with the operation of the Building, reserves to be maintained in
connection therewith, and the terms of any such sale or refinancing. In no event
shall Tenant be entitled to any payment of net cash flow or net proceeds from
any sale or refinancing or any other payment under this Special Stipulation 5
after the first seven (7) years of the initial term of this Lease (the "Tenant
Participation Period"). Further, following any sale of the Building from the
initial Landlord, Spring Creek Partners, L.L.C. to a successor during the Tenant
Participation Period, provided that Tenant is paid thirty percent (30%) of the
remaining net proceeds from such sale as described above in this Special
Stipulation 5, then Tenant shall not be entitled to receive any further payments
from any successor Landlord, and the provisions of this Special Stipulation 5
shall accordingly, only be binding upon the initial Landlord Spring Creek
Partners, L.L.C. during the Tenant Participation Period, but also binding upon
Mount Xxxxxx Place Partners, LLC should be the Building be conveyed outright or
as a result of a merger from Spring Creek Place Partners, LLC to Mount Xxxxxx
Place Partners LLC; provided such conveyance shall not constitute a sale for
purposes of this equity sharing provision. Notwithstanding the preceding
sentence, in the event the term of this Lease is extended past the Term provided
in Paragraph 2 of this Lease by a mutually acceptable written extension
agreement between Landlord and Tenant which is executed and entered into during
such Tenant Participation Period, then the Tenant Participation Period shall
also be extended by the same period as the extension term set forth in any such
written extension agreement; provided, however, that in all events, Tenant's
rights to receive the portion of net cash flow from operations and net proceeds
from any sale or refinancing, as set forth above in this Special Stipulation 5,
shall cease upon the date when three (3) years are left on the term of this
Lease. Accordingly, in no event shall Tenant be entitled to any portion of net
cash flow or net proceeds from any sale or refinancing during the last three (3)
years of the Term of this Lease, and accordingly, the Tenant Participation
Period shall not be extended by any holdover by Tenant either pursuant to
Section 12 of this Lease or otherwise. However, in the event Tenant extends the
Term of this Lease pursuant to Special Stipulation 9 below regarding Tenant's
renewal of the Term of this Lease, then the Tenant Participation Period shall be
extended in the manner set forth above, and if Tenant's rights to receive thirty
percent (30%) of net cash flow as set forth above have lapsed, then such rights
shall be revived by such extension of the Tenant Participation Period except
that all lapsed payments due from Landlord to Tenant associated with such
extension shall be paid by Landlord to Tenant as an expense in Landlord's
operation of the Building (but which shall not constitute an Operating Expense
as set forth in Exhibit "E" and other applicable provisions of this Lease) in
the current year when such
lapsed rights to receive payments are revived by such extension. Except
as set forth in the preceding sentence, the Tenant Participation Period
shall not be extended for any other reason except only as set forth
above in this Special Stipulation 5. Landlord's obligations under this
Paragraph 6 shall not be binding upon the holder of any first lien deed
to secure debt encumbering the Premises who takes title to the Premises
through a foreclosure or acceptance of a deed in lieu thereof, or upon
any purchaser at a foreclosure sale pursuant thereto, or any of their
respective successors, successors-in-title and assigns who likewise
succeed to Landlord's or such holder's interest in the Premises. For
purposes of this Special Stipulation there shall be excluded from the
equity sharing provisions and computations any and all proceeds with
respect to the Premises resulting from condemnation proceedings or from
deeds in lieu of condemnation.
6. On or before June 30, 2001, Tenant shall deliver to Landlord an
irrevocable standby letter of credit as security for Tenant's
performance under this Lease and to compensate Landlord for Landlord's
expenses incurred (said letter of credit and each letter of credit
substituted therefore as hereinafter provided, being hereinafter
referred to as the "Letter of Credit") issued in form and substance and
by an issuing banking institution acceptable to Landlord, its
successor-in-title and the holder of any first mortgage on the
Premises, containing the following terms and conditions:
(i) the Letter of Credit shall provide for multiple draws;
(ii) Landlord, the holder of a first lien deed to secure debt
encumbering the Premises, or Landlord's successor-in-title to
the Premises shall be the beneficiary under the Letter of
Credit;
(iii) draws under the Letter of Credit shall be honored by the
issuing lending institution upon presentation by an authorized
representative of the beneficiary accompanied by (a)
beneficiary's sight draft, (b) a certification by beneficiary
that Tenant has defaulted under this Lease and, as a result of
such default, Landlord is entitled to present the Letter of
Credit for payment, and (c) a certification by the beneficiary
that Landlord is entitled to payment of the sums set forth as
rental due under this Lease, together with a certificate as to
additional sums representing itemized costs and expenses
incurred by Landlord as a result of the default by Tenant under
this Lease and otherwise;
(iv) the term of the Letter of Credit shall be one (1) year from
the date of issuance thereof; and
(v) in the event the Letter of Credit has not been replaced by
Tenant with a substitute Letter of Credit in the amount set
forth below by five (5) business days prior to the expiring
date thereof, the beneficiary shall be entitled to present the
Letter of Credit for payment of the entire remaining
undisbursed balance thereof, accompanied solely by the
beneficiary's sight draft.
The first Letter of Credit shall be in the face amount of Two Million
and No/100 Dollars ($2,000,000.00); and shall remain in that amount
until the first (1st) day of the thirteenth (13th) calendar month prior
to the target Commencement Date for the initial floor of the Building
set forth in Special Stipulation 2(b) as accelerated by Tenant pursuant
to Special Stipulation 2(b) at which time the Tenant shall secure and
provide an amendment to the Letter of Credit increasing the face amount
to Two Million Five Hundred Thousand and No/100 Dollars
($2,500,000.00). The Letter of Credit (and successive Letter of Credit)
shall remain in the same amount until after one (1) year has lapsed
from the Commencement Date for the initial floor of the Building at
which time each successive Letter of Credit shall be in the face amount
of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) less
than the Letter of Credit replaced by such successive Letter of Credit,
until the amount of the next successive Letter of Credit is $0.00 at
which time Landlord shall return the issued and outstanding Letter of
Credit and Tenant shall have no further obligation to cause the
issuance of additional Letters of Credit. Except for draws undertaken
in connection with the mandatory non-renewal of the Letter of Credit,
draws under the Letter of Credit to pay rent and other monies due
Landlord under this Lease shall be deemed to cure any such monetary
defaults, unless the amount realized by the beneficiary from any such
draw are insufficient to pay in full the amount or amounts due and
owing Landlord under this Lease as a result of the event of default by
Tenant. Notwithstanding the foregoing, in the event the Letter of
Credit is drawn by reason of a default by Tenant in payment of monies
due to Landlord under the Lease and the amounts drawn are used to cure
such default as aforesaid, then within sixty (60) days after such draw
on the Letter of Credit, Tenant shall cause the Letter of Credit to be
increased to the amount of the Letter of Credit as existed immediately
prior to such draw. In the event Tenant does not do so, then Tenant
shall be in default under this Lease without any rights of cure or
reinstatement and Landlord shall be entitled to draw the balance of
the Letter of Credit in accordance herewith. For purposes of this
Lease, Tenant's default by failure to cause the letter of Credit to be
increased as required in the preceding two sentences is herein referred
to as a "Draw Default".
In the event the beneficiary under the letter of Credit receives a draw
of the entire amount available thereunder for any reason, and such
amount exceeds the actual amount due and owing or to be due and owing
to Landlord by Tenant as a result of the event of default with respect
to which the Letter of Credit was presented by the beneficiary for
payment (the "Excess Draw Amount"), Tenant shall receive a credit in
the amount of the Excess Draw Amount against Base Monthly Rental
payable by Tenant beginning with the last month (or portion thereof) of
the Term and continuing back from such last month through successive
prior calendar months during the Term until the Excess Draw Amount has
been credited in full.
7. Landlord warrants that the Building, Premises and all common areas will
meet building codes in Xxxxxx County at the Commencement Date and that
the Premises will be in compliance with the Americans With Disabilities
Act (42 U.S.C. ss. 12101 et. seq.). Landlord warrants that the offices,
rooms, buildings, structures, and adjacently owned property, including
all parking lots, walkways, entrances, hallways and other public
spaces,
elevators, and other devices or pathways for ingress and egress to the
leased property that might be used by customers, clients, invitees of
Tenant and the general public, conform to the requirements of the
Americans with Disabilities Act and all regulations issued by the U.S.
Attorney General or other authorized agencies under the authorization
of the American with Disabilities Act. The Landlord promises to
reimburse and indemnify and defend the Tenant for any expenses incurred
because of the failure of the leased Premises and adjacently owned
property to conform with the above cited law and regulations, including
the costs of making any alterations, renovations, or accommodations
required by the Americans with Disabilities Act, or any governmental
enforcement agency, or any court, any and all fines, civil penalties,
and damages awarded against the Tenant resulting from a violation or
violations of the above-cited law and regulations, and all reasonable
legal expenses incurred in defending claims made under the above-cited
law and regulations, including reasonable attorneys' fees.
Consistent with the foregoing, in addition, Tenant shall, at Tenant's
sole expense but subject to Landlord's prior written approval, make
each and every alteration or addition to the interior, non-structural
portion of the Leased Premises required to bring the interior,
non-structural portion of the Leased Premises into compliance with the
requirements imposed by the Americans With Disabilities Act, (42
U.S.C. ss. 12101 et. seq.) and any regulations promulgated pursuant
thereto (collectively such Act and regulations are referred to as "ADA
Requirements") effective from time to time during the Term if (a) the
requirement for such alteration or addition arises as a result of (i)
any alteration or addition by Tenant; or (ii) any violation by Tenant
of any ADA Requirements; or (iii) a special use of the Leased Premises
or any part thereof by Tenant or any assignee or subtenant of Tenant
(including, but not limited to, use for a facility which constitutes,
or, if open to the public generally, would constitute, a "place of
public accommodation" under the ADA Requirements); or (iv) the special
needs of the employee(s) of Tenant or any assignee or subtenant of
Tenant; or (b) the ADA Requirements would otherwise make Tenant, rather
than Landlord, primarily responsible for making such alteration or
addition.
8. Landlord represents that there is no asbestos or Hazardous Substances
in, on or about the Building, including the Premises and the Land.
Excepting for the willful act or negligence or violations of
Environmental Laws by Tenant, or its agents, employees, contractors,
customers, invitees, licensees, or visitors, Landlord indemnifies and
shall hold Tenant harmless from and defend Tenant against any and all
claims or liability solely resulting from a breach of the foregoing
representation in the preceding sentence.
9. Landlord agrees to grant to Tenant, but not any sublessee, the right to
renew this Lease on the same conditions and terms contained herein,
except as hereafter provided, for three 5-year renewal terms, provided
Tenant is not in default under this Lease at the time of Tenant's
exercise of said right or at the commencement of each renewal term.
Tenant shall give written notice to Landlord of Tenant's intent to
negotiate of said right twelve (12) months prior to the Lease
expiration or said right to renew shall expire.
If Tenant exercises the right to renew, the annual base rent for each
renewal term shall be equal to 95% of the then "current effective
market rate" for comparable space in low rise Class "A" office
buildings in the North Central/I 285 and North Xxxxxx/Georgia 400
office submarkets of metropolitan Atlanta, Georgia, taking into account
"free rent," tenant finish allowances, types and amount of parking, and
other financial concessions as are typically given to tenants for such
comparable space at the time of renewal.
Within thirty (30) days of receipt of notice of Tenant's exercise of
the right to renew, Landlord shall provide Tenant written notice of
Landlord's proposal of the "current effective market rate." Should
Tenant agree with Landlord's proposal, then Tenant shall within thirty
(30) days execute an amendment renewing this Lease. In the event Tenant
finds such proposal to be unsatisfactory, Tenant shall notify Landlord,
in writing, within fifteen (15) days of receipt of Landlord's proposal
and such notice shall contain Tenant's proposal for the "current
effective market rate". Should Landlord agree with Tenant's proposal,
then Tenant shall within thirty (30) days execute an amendment renewing
this Lease. In the event Landlord finds Tenant's proposal
unsatisfactory, Landlord shall so notify Tenant, in writing, within
five (5) business days of the receipt of Tenant's proposal and in such
event, Landlord and Tenant agree to negotiate in good faith in an
attempt to agree upon the "current effective market rate."
If Tenant and Landlord are unable to agree on the amount of the
"current effective market rate" within an additional thirty (30) days
after notification by Landlord that Tenant's proposal is unsatisfactory
then at Tenant's option, such amount shall be determined by arbitration
as described below, or the option to renew will expire.
Landlord and Tenant shall agree to each choose an arbitrator to choose
a third party arbitrator to determine the "current effective market
rate". Upon such third party arbitrator determining the "current
effective market rate", Landlord and Tenant shall renew the Lease by
immediately executing an amendment renewing this Lease at such rate
determined by the third party arbitrator. Such third party arbitrator
shall determine the "current effective market rate" within thirty (30)
days of being chosen. The third party arbitrator shall have at least
ten (10) years' business experience in independent appraisal in
commercial real estate transactions in the metropolitan Atlanta,
Georgia area. Landlord and Tenant agree that each party shall pay for
the costs incurred by the arbitrator it selects, and that the costs of
the third party arbitrator will be divided equally between Landlord and
Tenant.
10. Landlord and Tenant acknowledge and agree that will construct not less
than twenty one (21) parking spaces as a part of the construction of
the Building and that Landlord will construct an additional level on
the Buildings 1 and 2 Parking Deck containing one hundred forty nine
(149) parking spaces. Landlord agrees that all such parking spaces
shall be available during the Term and any extensions or renewals
thereof for the sole use of Tenant at no charge. All such spaces,
subject to the remaining terms and conditions of the Lease, will be
available twenty-four (24) hours per day, seven (7) days per week,
every day of the year.
11. Landlord hereby acknowledges and agrees that Tenant shall have the
right to install and operate satellite dishes (not to exceed one meter
in diameter) for service to the Premises at a location on the roof and
in a first-class manner acceptable to Landlord (hereinafter referred to
as the "dish space") during the term of this Lease and any extension
thereof.
Tenant hereby agrees to install any such satellite dish on the dish
space in a good and workmanlike manner, maintain and repair such
satellite dish and dish space in proper condition and to secure all
permits required for the installation and operation thereof, at no cost
to Landlord, and hereby indemnifies Landlord from and against any
claims against Landlord for personal injury, property damage or other
damage, including reasonable attorney's fees, arising from the
installation, use, operation, maintenance, repair and removal of the
dish space, the satellite dish, or any cables or related equipment
thereof. The provisions of this paragraph shall survive the expiration
date or sooner termination of this Lease. The insurance required to be
carried by Tenant under the Lease shall also apply to the satellite
dish and dish space.
Landlord understands and agrees that the satellite dish and related
equipment is considered the personal property of Tenant, and that
Tenant has the right to remove the same at any time during the Term, or
during any renewals or extensions thereafter. Accordingly, Tenant shall
remove the satellite dish and restore the dish space to substantially
the same condition as existed prior to the installation of the
satellite dish, reasonable wear and tear excepted.
All direct expenses incurred by Tenant in connection with the
installation, operation or removal of the satellite dish shall be paid
promptly by Tenant, and Tenant shall not permit any mechanic's or other
lien to be filed against Landlord in connection with the installation,
operation or removal of the satellite dish. Tenant shall provide
Landlord with an executed contractor's lien waiver within thirty (30)
days of completion of the work. Tenant shall be responsible for any and
all utilities to be used in connection with the operation of the
satellite dish should Landlord determine an additional charge is
necessary for its operation.
Tenant shall properly and promptly repair any damage or potentially
damaging condition existing or caused by the existence or operation and
use of the satellite dish or connecting cables or any part thereof
within ten (10) days after receipt of Landlord's written notice;
provided, however, if such repair cannot reasonably be cured within the
said ten-day period, and Tenant shall, in good faith, commence to
repair and diligently proceed to effect such repair, then the ten-day
period shall be extended for such reasonable period as Tenant shall
require to effect such repair. Should Tenant fail to satisfy the terms
of this provision within said ten-day period, Landlord may repair the
damaged condition at Tenant's cost.
Tenant represents and warrants to Landlord that the specifications,
location and contemplated use of the satellite dish comply with all
laws, ordinances, codes and
regulations promulgated by any governmental authority having
jurisdiction over the Premises or the installation and operation of the
satellite dish. The construction and installation shall be accomplished
in a good and workmanlike manner and with no disruption to the other
occupants of the Building. Tenant shall provide Landlord, prior to
installation of the satellite dish, detailed drawings and
specifications on the mounting method to be used in affixing the
proposed dish to the roof. Tenant shall require all contractors and
subcontractors to provide Landlord with certificates of insurance with
Landlord being named as Additional Loss Payee prior to installation.
12. (Intentionally Omitted)
13. The Base Rental Rate for the Building shall be $25.75 per rentable
square foot, subject to increase under Section 6 of the Lease and shall
be in addition to all other charges payable by Tenant under the Lease
for the Premises; provided, however, the Operating Expense Base Year
for ad valorem taxes under Section 8 of the Lease shall be 2003.
Additionally, at any time any Rental Rate changes, other than through
increases in Operating Expenses, as a result of any provision of this
Lease, then Tenant agrees to execute an amendment to this Lease setting
forth the revised rental rates as a result of such changes if requested
to do so by Landlord provided, however, that any such amendment shall
not change any other substantive provision of this Lease.
14. Notwithstanding the provisions of Special Stipulation 5, or any other
provisions of this Lease, Tenant shall not be entitled to receive any
payments from Landlord during any period that Tenant is in default
under this Lease, and accordingly, any such payment due from Landlord
to Tenant pursuant to Special Stipulation 5, or any other provisions of
this Lease may be held by Landlord and at Landlord's election applied
so as to cure any such default by Tenant.
15. Landlord shall not be relieved of liability pursuant to Section 26 of
the Lease to the extent such liability results from Landlord's
negligence or willful act.
16. If Landlord fails to maintain any portion of the Building which
Landlord is expressly required to maintain in accordance with the terms
of this Lease or if Landlord fails to provide any services to the
Premises which Landlord is expressly required to provide in accordance
with the terms of this Lease, and (i) as a result of such failure,
Tenant's use and enjoyment of the Premises is interfered with in a
material manner, and (ii) Landlord fails to commence to cure such
failure within three (3) days after written notice from Tenant of such
failure (specifying in such notice the nature of the failure), and
thereafter fails to proceed with due diligence to cure such failure
until completion, then Tenant shall have the right to perform such
maintenance work on the Premises subject to the terms and limitations
of this Special Stipulation 16. If Tenant is entitled and elects to
perform any maintenance as aforesaid, Tenant shall (i) perform such
maintenance work in a reasonable manner; (ii) utilize only contractors
or other such vendors with a first class reputation; (iii) cause such
work to be completed promptly and on a lien free basis; (iv) cause
such work to be completed in compliance with all applicable laws,
ordinances, regulations and rules; and (v) utilize the same or similar
materials as replaced. Tenant shall not be entitled to alter the
Building structure under any circumstance. Landlord shall reimburse
Tenant, within ninety (90) days after receipt of copies of the
invoices or other written evidence, reasonably satisfactory to
Landlord in Landlord's reasonable judgment, of the costs incurred by
Tenant for which Tenant claims reimbursement for the reasonable costs
and expenses incurred by Tenant in curing Landlord's breach as
aforesaid. In addition, in the event Landlord fails to commence to
cure such failure within the three (3) day written notice period
provided for above, then Landlord shall pay to Tenant $5,000.00 per
day for each of the first five (5) days and $13,000.00 per day
thereafter until Landlord commences to cure such failure (or if Tenant
validly elects to cure such failure itself subject to the terms and
conditions set forth above in this Special Stipulation 16, then the
$5,000.00 per day payment for each of the first five (5) days and
$13,000.00 per day thereafter shall continue until Tenant commences to
effect such cure). Tenant agrees that the remedies in favor of Tenant
under this Special Stipulation 16 and the payments from Landlord to
Tenant as set forth in this Special Stipulation 16 shall constitute
Tenant's sole remedies for any breach of the Lease by Landlord
described or contemplated under this Special Stipulation 16. Landlord
shall pay to Tenant the payments called for by Landlord under this
Special Stipulation 16 within thirty (30) days from the time Landlord
is obligated to pay such payments to Tenant.
17. As a part of the construction of the initial Tenant Improvements
pursuant to the Work Letter, Tenant shall present a proposal to
Landlord within ninety (90) days from the date of this Lease as to the
location, size, specifications and other pertinent information
regarding emergency generators that Tenant desires Landlord to install
as a part of the initial Tenant Improvements and, subject to Landlord's
written approval (not to be unreasonably withheld by Landlord) of the
location, size, specifications and other pertinent information
regarding such emergency generators, such emergency generators shall be
installed by Landlord at Tenant's cost as a part of the initial Tenant
Improvements to the Premises.
18. Notwithstanding the provisions of Rule and Regulation No. 1, Rule and
Regulation No. 18, or any other provision of this Lease to the
contrary, Tenant shall be responsible for all security for the Premises
and Building, and Landlord shall not be responsible for providing any
such security services.
19. Landlord shall construct the Building such that seven and one-half
(7 1/2) xxxxx live load of power per square foot of Tenant office space
will be available at the xxxx duct on each floor of the Building.
20. Subject to the approval of the applicable utilities providers, the
Landlord shall construct the Building such that power and fiber optic
feeds are available at the north side of the Building.
21. Within thirty (30) days from the expiration of each calendar year
during the term of this Lease, Tenant shall provide to Landlord audited
annual financial statements of Internet
Security Systems, Inc., a Delaware corporation, prepared in accordance
with generally accepted accounting principles and certified in writing
to Landlord by the chief financial officer of Tenant.
22. If Tenant occupies any other portion of the Premises (other than for
furniture installation or for wiring or cabling of the Premises)
earlier than any of the subsequent target Commencement Dates set forth
in Section 3 of the Lease, then Tenant during the period of such early
occupancy prior to any such subsequent target Commencement Date shall
pay the rental in full with respect to the applicable portion of the
Premises which Tenant occupies early and during the period of such
early occupancy only, and not thereafter, and only with respect to the
applicable portion of such Premises which Tenant has occupied early.
23. The parties acknowledge that Tenant is applying for property tax
abatement with respect to the Premises. Any such savings which result
from Tenant's successfully obtaining such property tax abatement shall
inure to Tenant's benefit thereby resulting in a reduction of the
additional rental otherwise due under Section 8 of this Lease with
respect to ad valorem tax increases. For purposes of calculating
Operating Expenses for either the first year of the Term or the base
year of 2003, Operating Expenses shall be calculated based upon a fully
assessed and occupied Building.
24. Notwithstanding the provisions of Section 8, Section 14, Section 17, or
any other provision of this Lease to the contrary, the parties agree
that Landlord may render to Tenant written estimates of amounts
reasonably anticipated to be due from Tenant to Landlord as a result of
Landlord's maintaining and replacing light bulbs and fixtures in the
Premises as contemplated under Section 14 of the Lease or as a result
of Landlord's paying utility bills on Tenant's behalf to be reimbursed
by Tenant as contemplated under Section 17 of this Lease with respect
to any and all months during the Term of this Lease (notwithstanding
that Landlord shall not be entitled to render estimates to Tenant of
additional Operating Expenses to be paid by Tenant until after the base
year of 2003). It is acknowledged and agreed that such estimates may be
rendered at all times from and after the Commencement Date, with
fifteen (15) days prior notice, during the year 2003 as well as the
remainder of the Term of this Lease and any renewals thereof. To the
extent as a result of such estimates rendered from Landlord to Tenant
with respect to the applicable expenses under either Section 14 or
Section 17 of this Lease, Tenant either overpays or underpays such
expenses, then any such overpayment or underpayment shall be reconciled
within one hundred twenty (120) days after the end of any calendar year
and as otherwise provided in the manner set forth in the fourth (4th)
paragraph of Section 8 of this Lease. As with all other written
estimates from Landlord to Tenant described in either the third
paragraph of Section 8 of this Lease or in this Special Stipulation 24,
Tenant shall pay as additional rental to Landlord promptly on the first
day of each month in advance without deduction or set off in legal
tender the monthly amount called for under such estimate from Landlord
to Tenant for those months for which additional rental is due pursuant
to such estimates and as otherwise contemplated under this Lease.
With respect to amounts due from Tenant to Landlord as a result of Landlord's
maintaining and replacing light bulb and fixtures in the Premises as
contemplated under Section 14 of the Lease, Landlord shall render such estimates
to Tenant and Tenant shall pay such amounts in accordance with the terms and
conditions of Section 8 and this Special Stipulation 24. With respect to amounts
due from Tenant to Landlord as a result of Landlord's paying utility bills on
Tenant's behalf to be reimbursed by Tenant as contemplated under Section 17 of
this Lease, Landlord shall be entitled to either (i) render invoices to Tenant
which shall be paid by Tenant within fifteen (15) days of Tenant's receipt of
such invoice, as provided in Section 17 of this Lease; or (ii) render estimates
and annual reconciliations to Tenant as provided in Section 8 and this Special
Stipulation 24 of this Lease. With respect to any particular utility xxxx due to
be reimbursed by Tenant to Landlord, Landlord shall be entitled to choose from
the foregoing (i) or (ii) as applicable.
MOUNT XXXXXX PLACE
INTERNET SECURITY SYSTEMS, INC.,
A GEORGIA CORPORATION
EXHIBIT "A"
The Premises shall consist of the entirety of the Building as these
terms are defined in this Lease to be constructed pursuant to the project
manuals and drawings more particularly described and enumerated in Exhibit "A-l"
attached hereto and made a part hereof by reference. It is acknowledged that no
floor plan of the Premises is attached to this Lease because Tenant is instead
leasing the entirety of such Building according to the terms and conditions of
this Lease.
EXHIBIT "A"
EXHIBIT A-1 TO BUILDING 3 LEASE
XXXXX XXXXXX XXXXX XXXXXX XXXXXXXX
XXXXXXX, XXXXXXX
MAY 30, 2001
PROJECT MANUAL & DRAWINGS
SHEET NO. TITLE DATE
---------------------------------------------------------------------------------------------------------------
Project Manual for Mt. Xxxxxx Place Office Building 12/30/99
Release: Construction
Warner, Summers, Ditzel, Benefield, Xxxx & Assoc.
---------------------------------------------------------------------------------------------------------------
ARCHITECTURAL
---------------------------------------------------------------------------------------------------------------
Mt. Vemon Place Corporate Campus
Internet Security Systems - Phase III
Warner, Summers, Ditzel, Benefield, Xxxx & Assoc.
---------------------------------------------------------------------------------------------------------------
SP.l Site Plan 12/18/00
---------------------------------------------------------------------------------------------------------------
A2.01 Building Three, First Floor Plan 12/18/00
---------------------------------------------------------------------------------------------------------------
A2.02 Building Three, Second Floor Plan 12/18/00
---------------------------------------------------------------------------------------------------------------
A2.03 Building Three, Third Floor Plan 12/18/00
---------------------------------------------------------------------------------------------------------------
A2.04 Building Three, Fourth Floor Plan 12/18/00
---------------------------------------------------------------------------------------------------------------
A3.01 Building Three, North & West Elevations 12/18/00
---------------------------------------------------------------------------------------------------------------
A3.02 Building Three, South & East Elevations 12/18/00
---------------------------------------------------------------------------------------------------------------
PA2.1 Parking Deck Floor Plan & Details 4/24/01
Revised 5/8/01
---------------------------------------------------------------------------------------------------------------
PA2.4 Parking Deck - Door Schedule & Details 4/24/01
Revised 5/8/01
---------------------------------------------------------------------------------------------------------------
PA7.2 Stair Plans & Sections 4/24/01
Revised 5/8/01
---------------------------------------------------------------------------------------------------------------
PS1.0 Stair Plan & Sections 4/24/01
---------------------------------------------------------------------------------------------------------------
MOUNT XXXXXX PLACE
INTERNET SECURITY SYSTEMS, INC.,
A GEORGIA CORPORATION
EXHIBIT "B" - LEGAL DESCRIPTION
[TO BE ATTACHED]
EXHIBIT "B"
EXHIBIT "B"
ISS BUILDING 3 LEASE
(LAND)
ALL THAT TRACT OR PARCEL OF LAND lying and being located in Land Xxx 00, 00xx
Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and being more particularly described as
follows:
BEGINNING at the concrete highway monument located at the intersection of the
southeastern right-of-way line of Mount Xxxxxx Road (having a 50 foot
right-of-way width) with the western right-of-way line of Georgia Highway 400,
also known as North Xxxxxx Expressway (having a variable right-of-way width);
thence run in a generally southerly direction along said western right-of-way
line of Georgia Highway 400 the following courses and distances: South
12(degree) 03' East a distance of 146.5 feet to a concrete highway monument
(which highway monument is 160 feet west of the centerline of Georgia Highway
400); South 00(degree) 03' 30" East a distance of 229.7 feet to a point, thence
leaving said western right-of-way line of Xxxxxxx Xxxxxxx 000, xxx Xxxxx 00" 53'
West a distance of 146.4 feet to an iron pin found (one-half inch reinforced
rod); thence run North 00(degree) 06' 30" West a distance of 67.0 feet to an
iron pin found (one-half inch reinforced rod); thence run South 89(degree) 53'
30" East a distance of 69.7 feet to an iron pin found (one-half inch reinforced
rod); run thence North 00(degree) 32' 30" West a distance of 226.89 feet to an
iron pin placed on the southeastern right-of-way of Mt. Xxxxxx Road; thence run
in a northerly and easterly direction along said southeastern right-of-way line
of Mt. Xxxxxx Road the following courses and distances: North 00(degree) 32' 30"
West a distance of 10.61 feet to an iron pin found (one-half inch reinforce
rod); and North 69(degree) 51' 30" East a distance of 199.9 feet to a concrete
highway monument; said concrete monument being the POINT OF BEGINNING.
The above-described property contains 1.55 acres and is shown on and described
as Parcel III according to that Survey for Sanbury Corporation and Mount Xxxxxx
Federal Savings and Loan Association, prepared by Xxxxx & Xxxxxxxx Engineers
(X.X. Xxxxxxxx, G.R.L.S. No. 490), dated April 8, 1988, which certain Survey is
herein incorporated by this reference and hereby made a part of this
description.
Less and except from the foregoing the following tract of Land, to-wit:
All that tract or parcel of land lying and being in Land Xxx 00, 00xx Xxxxxxxx,
Xxxxxx Xxxxxx, Xxxxxxx and being more particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point formed by the
intersection of the southerly right-of-way line of Mount Xxxxxx Drive, (a 70
foot right-of-way) with the easterly right-of-way line of Xxxxxxxx Road (a 70
foot wide right of way), and said point being located south 52(degree)28'48"
east a distance of 4733.1 from Xxxxxx County Monument F451; from said point run
thence south 00(degree)06'00" east a distance of 154.59 feet along said
right-of-way line of Xxxxxxxx Road to a 1/2" RBF; running thence
Page 1 of 2
north 89(degree)53'30" east a distance of 11.37 feet to a point; run thence
north 89(degree)53'30" a distance of 258.33 to the TRUE POINT OF BEGINNING; from
said TRUE POINT OF BEGINNING AS THUS established running thence north
89(degree)53'30" east a distance of 70.59 feet to a point on the proposed
Georgia 400 right-of-way; running thence along said right of way in a southerly
direction and along the arc of a curve to the left (said curve having a radius
of 6622.90 feet) (said arc being subtended by a chord bearing south
03(degree)01'59" west with a length of 67.09 feet) an arc distance of 67.09 feet
to a point; running thence north 89(degree)53'00" east a distance of 66.92 feet
to a point; running thence north 00(degree)06'00" west a distance of 67.00 feet
to the TRUE POINT OF BEGINNING; according to a plat of survey by Xxxxx X.
Xxxxxxx, Georgia Registered Land Surveyor #2802 entitled "Exhibit of Property at
0000 Xxxxxxxx Xxxx, prepared for The Xxxxxxx Company" dated September 13, 2000;
and containing 5606 square feet or 0.099 acres.
Page 2 of 2
MOUNT XXXXXX PLACE
INTERNET SECURITY SYSTEMS, INC.,
A GEORGIA CORPORATION
EXHIBIT "C" - TENANT ACCEPTANCE AGREEMENT
THIS AGREEMENT is an amendment to the Lease Agreement (the "Lease") for
space in the office buildings known as Building 0, Xxxxx Xxxxxx Xxxxx, located
at 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx 00000, dated as of
the______________________day of______________________, 2001, by and between
SPRING CREEK PARTNERS, LLC, as Landlord, and Internet Security Systems
_____________________________, a ___________________________________________, as
Tenant.
Pursuant to the provisions of Paragraph 3 of the Lease, Landlord and
Tenant hereby mutually agree that:
1. Except for those items shown on the attached "Punch List," which
Landlord will remedy within __________________days hereof, Landlord has fully
completed the construction work required under the terms of the Lease.
2. Tenant is in possession of, and has accepted the portion of the
Premises being described as__________________(the "Premises Portion"). The
Premises Portion are tenantable, the Landlord has no further obligation for
construction (except as specified above), and Tenant acknowledges that the
Premises Portion are satisfactory in all respects except for any latent defects
for which Landlord shall be and remain responsible. All conditions of the Lease
required of Landlord as of this date have been fulfilled (except as specified
above), and there are no defenses or setoffs against the enforcement of the
Lease by Landlord.
3. The Commencement Date of the Lease as to the Premises Portion is
hereby agreed to be the _________day of_______________________________, 200_ as
to ____________________________.
4. The Expiration Date of the Lease is hereby agreed to be the
_____________________ day of ______________________________,201 .
5. The Premises Portion are hereby agreed to
contain_______________________________________rentable square feet.
6. The Building is hereby agreed to
contain______________________________________rentable square feet.
All other terms and conditions of the Lease are hereby ratified and
acknowledged to be unchanged.
EXHIBIT "C"
Agreed and Executed this___________________________day
of_____________________________________, 200_.
TENANT:
Signed, sealed and delivered this___ day of INTERNET SECURITY SYSTEMS, INC.,
______________, 200_ in the presence of: a Georgia corporation
____________________________________ By:(Exhibit Purposes Only - Not
Notary Public/Witness for Signature)
____________________________________ Name:_____________________________
Name (Please Print) (Please Print)
Title:_____________________________
Attest:____________________________
Name:______________________________
Title:_____________________________
LANDLORD:
Signed, sealed and delivered this___day of SPRING CREEK PARTNERS, LLC
______________, 200_ in the presence of: A GEORGIA LIMITED LIABILITY COMPANY
____________________________________ By:(Exhibit Purposes Only - Not
Witness for Signature)
---------------------------------
Xxxx X. Xxxxxxx, Managing Member
____________________________________
Name (Please Print)
MOUNT XXXXXX PLACE
WORK LETTER
WHEREAS, the undersigned Landlord and Tenant have executed, sealed and
delivered the Lease, to which this Agreement is attached, and into which this
Agreement is fully incorporated by this reference, as Exhibit "D";
WHEREAS, said Lease provides for the leasing of office space (the
"Premises") being Xxxxxxxx 0 xx XXXXX XXXXXX XXXXX located at 0000 Xxxxxxxx
Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx 00000 (the "Building");
WHEREAS, the terms "Landlord" and "Tenant," "Premises" and "Building,"
as used herein, shall have the same meanings ascribed thereto as set forth in
the Lease; and
WHEREAS, Landlord and Tenant desire to set forth herein their
respective agreements regarding design and construction of the improvements to
the Premises.
NOW THEREFORE, in consideration of the Premises, the execution and
delivery of the Lease by the parties hereto, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant, intending to be legally
bound, hereby agree as follows:
SECTION 1. TENANT IMPROVEMENTS.
Section 1.01. Definition.
The term "Tenant Improvements" shall mean all improvements
constructed or installed in or on the Premises in accordance with the Drawings
and Specifications, as hereinafter defined.
Section 1.02. Base Building Condition.
Landlord agrees that the following shall be furnished,
installed and, if appropriate, made operational as part of the Base Building at
Landlord's sole expense:
a) Finish interior of exterior walls, with drywall
portions of such interior walls taped and floated and
ready for surface treatment. All window glass and
frames installed and ready for final finishing. All
exterior windows equipped with Building-standard
blinds;
b) Building standard ceiling system and tile throughout
elevator lobbies and other appropriate common
Building facilities as shown on the Base Building
plans;
c) Broom-clean unfinished concrete floors;
EXHIBIT "D"
d) Building standard light fixtures throughout elevator
lobbies and other appropriate common Building
facilities as shown on the Base Building plan;
e) Landlord and Tenant agree that Base Building shall
include the men's and women's restrooms on the
Premises, as shown in Exhibit "A," including all
bathroom and light fixtures, mirrors, doors, and
partitions constructed to Building standard in
compliance with applicable codes;
f) Building standard drinking fountains;
g) Main heating, ventilating and air conditioning (HVAC)
plant and equipment as shown on the Base Building
plans;
h) Concrete columns unfinished;
i) Building standard ceiling grid installed in the
Premises;
j) Sprinkler risers, main loop and sprinkler heads on
the floor with capacity and number of heads as
required by applicable laws, based on an open floor
plan. Sprinkler heads in areas with unfinished
ceilings will be turned up toward the structure;
k) Building stairways and exits with surrounding walls
taped, floated and finished and painted;
1) Building core with surrounding walls taped, floated
and ready for final finishing;
m) Life safety systems as required by all applicable
laws as shown on the Base Building Plans;
n) Elevator, elevator shaft doors, frames and door
facings prime painted and ready for final finishing;
o) Building standard 2x4 parabolic light fixtures will
be provided for installation by Landlord's Contractor
at a ratio of one (1) fixture per eighty (80) square
feet; and
p) HVAC will be provided in all restrooms and elevator
lobbies. Perimeter slot diffusers and X.XX.'s will be
installed on all tenant floors.
Section 1.03. Architect.
The term "Architect" herein referred to shall be Warner, Summers,
Ditzel, Benefield, Xxxx & Associates, Inc., the architect for the Base Building
and the architect selected by Tenant for the design, drawings, specifications
and finish schedule for the Premises.
SECTION 2. DRAWINGS AND SPECIFICATIONS.
Section 2.01. Definition.
The term "Drawings and Specifications" shall mean the
final drawings, specifications, and finish schedules for the Tenant Improvements
which shall be prepared by Tenant and approved by Landlord in accordance with
the following procedure:
a) As provided in Section 3.02 (b) hereof, the cost of
preparing the drawings, specifications, finish
schedules and the like shall be paid by Tenant and be
a part of Tenant Costs.
b) As soon as reasonably possible but in all events not
later than May 1, 2002 Tenant shall submit to
Landlord for Landlord's review and comments Tenant's
preliminary space plan for the Premises, which shall
contain sufficient detail for Landlord to incorporate
in the building shell design and in sufficient detail
for Landlord to prepare preliminary plans and
specification for governmental permitting purposes.
Within thirty (30) days of Landlord's receipt of
Tenant's preliminary space plan for the Premises,
Landlord shall provide comments regarding such
preliminary space plan, and promptly following
Tenant's receipt of Landlord's comments, Tenant shall
cause such preliminary space plan to be revised in
accordance with Landlord's comments so as to cause
such preliminary space plan to be acceptable to
Landlord. In all events, Tenant shall provide a final
space plan for the Premises acceptable to Landlord
(which shall then become the "Drawings and
Specifications" as defined above) not later than
September 1, 2002. Landlord shall within one (1)
month of Landlord's receipt of Tenant's final space
plan for the Premises acceptable to Landlord, provide
an initial construction estimate to Tenant. At its
option, Tenant may review the initial construction
estimate (which shall include a breakdown of the bids
of the trades together with all other costs to be
included within Tenant's Construction Costs with each
such bid and cost to be set forth on a "line item
basis") for all or any part of the work and if
dissatisfied with the costs of all or any trade
portion(s) or other cost items of such proposal,
Tenant may require Landlord to solicit bids or obtain
proposals from others or otherwise object to such
costs items as hereinafter provided. If Tenant
disapproves any portion of Landlord's initial
construction estimate, Tenant may with regard to any
trade bid (a) require Landlord to obtain no less than
three (3) subcontractor bids and Tenant shall then
have the right to select the chosen bid; (b) require
the work to be performed on a time and materials
basis by such trades. Tenant shall promptly provide
any comments regarding Landlord's initial
construction estimate. Further, Tenant shall promptly
exercise all of its rights regarding Tenant's review
and approval of Landlord's construction estimate, and
Tenant shall in all events be responsible for causing
such initial construction estimate to be finally
approved by Tenant not later than December 1, 2002
("Final Price Approval"). Within one (1) month of
Landlord's receipt of Final Price Approval from
Tenant, Landlord will apply for a building permit for
construction for the Tenant Improvements for the
Premises and
Landlord will begin construction of such Tenant Improvements no later
than February 1,2003.
As used herein throughout this Work Letter and throughout the body of
the Lease, the term "Tenant Delay shall mean any actual delay in
causing the Premises to be ready for occupancy which is due to any act
or omission of Tenant, its agents, contractors, or employees including,
without limitation, Tenant's failure to adhere to the schedule and time
frames and deadlines set forth above in this subparagraph (b). Tenant
Delay shall include, without limitation: (i) delays due to changes by
Tenant in or additions to the Drawings and Specifications or to the
work and/or other plans and specifications in connection therewith,
(ii) delays resulting from Tenant's failure to timely perform its
obligations under the approved schedule set forth above, including any
failure to submit or finalize any drawings, plans or specifications by
the applicable dates and/or within the applicable time periods
indicated in such approved schedule and including any failure to timely
perform any of Tenant's work required in order for Landlord to obtain a
certificate of occupancy for the Premises, and (iii) delays because of
Tenant's specifications for materials or equipment (including, without
limitation, computer room materials) not permitting timely completion
under normal circumstances. For items identified by Landlord to cause a
delay in construction, Tenant shall have the right to either (i) accept
such items as Tenant Delay items or (ii) substitute materials that
would eliminate such delay. Notwithstanding the foregoing, if any
materials which Landlord did not designate as Tenant Delay items,
because of Landlord's reasonable reliance on third party
representations that such materials were available, should become
unavailable during the course of construction for reasons beyond
Landlord's reasonable control, such that completion of the Tenant
Improvements for the Premises would be delayed, then Tenant shall
cooperate in good faith with Landlord to use substitute materials which
would avoid any such delay.
c) Landlord shall be responsible for causing the Architect to certify to
Landlord and Tenant that the proposed final working drawings,
specifications and the like will comply with all state and local zoning
laws, building laws, public safety, or any other ordinances applicable
hereunder. Landlord's approval of the Drawings and Specifications shall
not relieve Tenant from its obligation hereunder.
d) For the purpose of this Agreement, Landlord shall retain and supervise, as
its agent, the general contractor. Landlord agrees that the general
contractor retained by Landlord as Landlord's Contractor shall perform the
Tenant Improvements. The aggregate cost for the Tenant Improvements, shall
hereinafter be referred to as 'Tenant Improvement Costs". Upon
determination of the Tenant Improvement Costs, Tenant shall be deemed to
have given final approval to the Drawings and Specifications and Landlord
shall be deemed to have been authorized to proceed, through Landlord's
Contractor, with the work of constructing and installing the Tenant
Improvements in accordance with the Drawings and Specifications.
e) Landlord and Tenant acknowledge and agree that the specific dates set forth
in this Exhibit "D" Work Letter are based on the assumption that the
targeted
Commencement Date for the initial floor of the Building is June 1,
2003. In the event the Tenant accelerates such targeted Commencement
Date as provided for in Special Stipulation 2 (c) above then each of
the dates in this Exhibit D Work Letter shall be accelerated by an
identical number of days.
SECTION 3. PAYMENT OF COSTS.
Section 3.01. Landlord's Allowance for Tenant Costs.
Landlord shall pay the Tenant Costs up to, but not in excess of, an
amount equal to $25.00 per rentable square foot of the Premises (the "Landlord's
Allowance for Tenant Costs" and also sometimes referred to as the "Tenant
Improvement Allowance") as and when same are due. The Landlord's Allowance for
Tenant Costs" may be used by Tenant to cover the costs of (i) its space
planning, architectural and engineering firms, together with (ii) Tenant's
signage costs, and together with (iii) the acquisition and installation of
Tenant's furniture, fixtures and equipment, but not to exceed $2.50 per rentable
square foot of the Premises for such acquisition and installation of Tenant's
furniture, fixtures and equipment.
Section 3.02. Tenant Costs.
The aggregate of all costs described in the following
subparagraphs (a) through (d) of this Section 3.02 are hereinafter referred to
collectively as "Tenant Costs."
a) The Tenant Improvement Costs;
b) The cost of preparing and finalizing all drawings,
specifications, finish schedules and the like as set
forth in Sections 2.01 (a) through (d) above;
c) Fees for architects, engineers required for Tenant's
space, interior designers, and other professionals
and design specialists reasonably incurred by
Landlord or, Tenant in connection with the Tenant
Improvements; and
d) The cost of making any and all changes in and to the
Drawings and Specifications and any increased or
decreased costs in the Tenant Improvement Costs
resulting therefrom;
In the event the aggregate of Tenant Costs, as defined above,
exceeds Landlord's Allowance for Tenant Costs, as specified in Section 3.01
above, then Tenant shall promptly pay the excess to Landlord upon demand;
provided, however, that Tenant may amortize up to $2.50 per rentable square foot
of the Premises of such excess amount as outlined in Special Stipulation 4 of
this Lease.
Section 3.03. Changes in Drawings and Specifications.
Landlord, at its option, may require Tenant to pay in lump sum to
Landlord any and all increases in the Tenant Improvement Costs which result from
approved changes to the Drawings and Specifications. Any delays in completing
the Tenant Improvements which result from either changes in the Drawings and
Specifications made by Tenant or from the unavailability of materials specified
by Tenant, shall not operate to delay or extend the Commencement Date under the
Lease nor the payment of the Base Monthly Rental or other charges due under this
Lease.
Section 3.04. Failure to Pay Tenant Costs.
Failure by Tenant to pay Tenant Costs, in accordance with this
Section 3, will constitute a failure by Tenant to pay rent when due under the
Lease and for such failure to pay Tenant Costs, Landlord shall have all of the
remedies available to it under this Lease and at law or in equity for nonpayment
of rent.
SECTION 4. INSPECTION.
Landlord and Tenant each reserve the right to perform periodic
inspections prior to the Commencement Date of the Tenant Improvements and Tenant
shall notify Landlord at least twenty-four (24) hours in advance of such
inspection procedures by Tenant. Tenant and the Architect shall be permitted to
visit and walk through the Premises at any time during normal business hours.
Any defective Tenant Improvement work discovered during either
Landlord's or Tenant's inspection or work failing to conform to the Drawings and
Specifications, together with any latent defects in the initial improvements
shall be promptly corrected by Landlord's Contractor at Landlord's sole cost.
SECTION 5. FINISH WORK IN ADDITION TO TENANT IMPROVEMENTS.
All work in or about the Premises which is not within the scope of the
work necessary to construct and install the Tenant Improvements, such as
delivering and installing furniture, telephone equipment, and wiring, and office
equipment, shall be furnished and installed by Tenant entirely at Tenant's
expense. Tenant shall be entitled to begin installing its wiring sixty (60) days
prior to completion of the Tenant Improvements. Tenant shall adopt a schedule
for performing such additional work consistent with the schedule of Landlord's
Contractor and shall see that such work is conducted in such a manner as to
maintain harmonious labor relations and as not to interfere unreasonably with or
to delay the work of constructing or installing the Tenant Improvements.
Landlord shall give access and entry to the Premises to Tenant and its contract
parties performing such additional work and reasonable opportunity and time to
enable Tenant and such contract parties to perform and complete such work
provided such additional work does not interfere with or otherwise encumber
Landlord's work or construction progress. All of such additional"work and
Tenant's use (and the use by its contract parties) of the Premises for such
purposes shall be entirely in accordance with the Lease, including without
limitation this Work Letter.
SECTION 6. TIME IS OF THE ESSENCE.
Time is of the essence of this Agreement. Unless specifically provided
otherwise, all reference to days or months shall be construed as references to
calendar days or months, respectively. In the event of Tenant Delay, then the
date for completion by Landlord of Tenant Improvements shall be extended for the
period of such delay, but the Commencement Date of Tenant's payment obligations
hereunder, including, without limitation, Base Monthly Rental, shall not be
extended and shall commence as scheduled under this Lease without regard to
non-completion of Tenant Improvements.
SECTION 7. APPROVAL OF PLANS.
Any approval by Landlord of or consent by Landlord to any plans,
specifications or other items to be submitted to and/or reviewed by Landlord
pursuant to this Lease shall be deemed to be strictly limited to an
acknowledgment of approval or consent by Landlord thereto and, whether or not
the work is performed by Landlord or by Tenant's contractor, such approval or
consent shall not constitute the assumption by Landlord of any responsibility
for the accuracy, sufficiency or feasibility of any plans, specifications or
other such items and shall not imply any acknowledgment, representation or
warranty by Landlord that the design is safe, feasible, structurally sound or
will comply with any legal or governmental requirements, and Tenant shall be
responsible for all of the same.
MOUNT XXXXXX PLACE
OPERATING EXPENSES - DEFINITIONS
"Operating Expenses" for or attributable to the Premises shall mean the
operating costs and expenses for the Property and the Building, including all
expenses, costs and disbursements of every kind and nature, which Landlord
shall (i) pay and/or; (ii) become obligated to pay, including, but not limited
to, the following:
- Wages and salaries of all employees engaged in the operation
and maintenance of the Property and Building, including, but
not limited to, taxes, insurance and benefits relating
thereto;
- All supplies and materials used in the operation and
maintenance of the Property and Building;
- Cost of all service agreements and maintenance for the
Property and Building and the equipment therein, including,
but not limited to, trash removal, alarm services, window
cleaning, janitorial service, HVAC maintenance, elevator
maintenance and grounds maintenance;
- Cost of all insurance relating to the Property and Building,
including, but not limited to, the cost of casualty and
liability insurance applicable to the Property and Building
and Landlord's personal property used in connection
therewith;
- All taxes (ad valorem and otherwise), assessments and
governmental charges, whether federal, state, county or
municipal, and whether by taxing districts or authorities
presently taxing the Property and Building, or by others,
subsequently created or otherwise, and any other taxes (other
than federal and state income taxes) and assessments
attributable to the Property and Building or its operation
and any reasonable consultants' fees incurred with respect to
issues or concerns involving the taxes of the Building, the
Property, or both;
- Cost of repairs and general maintenance of the interior and
exterior of the Property and Building (including, but not
limited to, glass breakage), parking areas and landscaping;
- A management fee for general operation and management of the
Property and Building, such management fee to be no greater
than three percent (3%) of Base Monthly Rental net of
electricity for the Term of this Lease; and
- An amortization cost due to any capital expenditures incurred
(i) which reduce or limit Operating Costs of the Property and
Building, if such reduction or limitation inures to Tenant's
benefit (but only to the extent and in the amount that such
EXHIBIT "E"
OPERATING EXPENSE EXCLUSIONS - CONTINUED
Operating Costs of the Property and Building are reduced); (ii) which
may be required by governmental authority or by Landlord's insurance
carrier; or (iii) which are designed to protect or enhance the health,
safety or welfare of the tenants in the Building or their invitees.
OPERATING EXPENSE EXCLUSIONS - CONTINUED
MOUNT XXXXXX PLACE
OPERATING EXPENSE EXCLUSIONS
1. Franchise, income, transfer, inheritance, capital stock taxes or taxes
imposed upon or measured by the income of the Landlord;
2. Depreciation of the Building, amortization and other non-cash charges;
3. The cost of any alteration, additions, changes or decorations which
are made in order to prepare space (including Premises) for Tenant's
occupancy;
4. The cost of performing work or furnishing services to or for any
Tenant, other than Tenant, at Landlord's expense, to the extent that
such work or service exceeds or is more favorable than comparable work
or service provided to Tenant at Landlord's expense;
5. The cost (including, without limitation, attorney's fees and
disbursements) of any judgement, settlement or arbitration award
resulting from any tort liability;
6. The general overhead of Landlord and labor costs and all other
compensation of all administrative personnel, officers, executives and
staff members of Landlord or Landlord's agents above the grade of
building manager or engineer.
7. The cost of installing, operating and maintaining any specialty
service such as an observatory, broadcasting facility, luncheon club,
athletic or recreational club;
8. The costs of defects in the construction, design or equipping of the
Building with respect to the mechanical systems of the Building or
with respect to any of the structural components of the Building;
9. Any cost or expense incurred in connection with correcting latent
defects or inadequacies in the Building;
10. The cost of any special heating, ventilating, air-conditioning,
janitorial or other special or extra services provided to tenants
during other than regular business hours;
11. Legal or auditing fees, other than those reasonably incurred in
connection with the maintenance and operation of the Land and Building
or in connection with the preparation of statements required pursuant
to Additional Rent or lease escalation provisions;
12. Any rent, additional rent or any other charge under any lease or
sublease to or assumed directly or indirectly by Landlord;
OPERATING EXPENSE EXCLUSIONS - CONTINUED
13. Expenditure on account of Landlord acquisition of air rights;
14. Any Operating Expenses related exclusively to any retail or storage
space in, on or about the Property or appurtenant or adjacent thereto;
15. Any accrued and unfunded pension or other benefits of any personnel;
16. Any amount paid to any affiliate of Landlord to the extent such amount
is in excess of the amount which would be paid in the absence of such
relationship;
17. Advertising, marketing or promotional expenditures;
18. Any costs incurred in the removal, containment, encapsulation, or
disposal of or repair or cleaning or monitoring of areas affected by
any hazardous material including without limitation, asbestos;
19. Costs incurred to correct any misrepresentation by Landlord expressly
made herein;
20. The value or loss of income to Landlord of any space in the Building
which is utilized for the management of the Building;
21. Any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord or any affiliate of
Landlord;
22. Late fees, penalties, interest charges or similar costs incurred by
Landlord;
23. Costs associated with the operation of the business of the legal
entity that constitute Landlord as the same is separate and apart from
the costs of the operation of the Building, including the legal entity
formation, internal accounting and legal matters;
24. Unrecovered expenses resulting directly from the negligence of the
Landlord, its agents, servants or employees;
25. Costs incurred due to the violation by Landlord or any tenant of the
Building of the terms of any lease or any laws, rules, regulations or
ordinances applicable to the Building; and
26. Brokerage commissions paid by Landlord in its leasing of the Building.
MOUNT XXXXXX PLACE
PROJECTED 2003 OPERATING EXPENSES
(Per Square Foot)
Building Maintenance .71
Janitorial Maintenance .85
Grounds Maintenance .33
Administrative .52
Property Tax 1.50
Insurance .13
Management Fee .63
Reserves .20
-----
TOTAL PROJECTED 2003 OPERATING EXPENSES $4.87
=====
EXHIBIT "E"
MOUNT XXXXXX PLACE
RULES AND REGULATIONS
Tenant shall observe the following Rules and Regulations (as amended, modified
or supplemented from time to time by Landlord as provided in this Lease):
1. The following provisions of this Rule and Regulation No. 1 shall be
applicable only in the event Landlord determines to invoke such rule
and regulation in the event of multiple tenants of the Building which
could result in the event Landlord approves partial assignments and/or
subletting by Tenant. So long as Tenant is the single tenant of the
Building, the parties acknowledge that Landlord will not provide
security services and that Tenant will be responsible for the same,
and that as such, the provisions of the following Rule and Regulation
No. 1 shall be inapplicable: "Normal business hours" shall mean the
days Monday through Friday, inclusive, except legal holidays, during
the hours from 8:00 a.m. to 6:00 p.m., and Saturdays, except legal
holidays, from 8:00 a.m. to 1:00 p.m. At all other times every person,
including Tenant, Tenant's employees, agents clients, customers,
invitees and guests entering and leaving the Building may be
questioned by a security guard as to that person's business therein,
and may be required to sign such person's name on a form for
registering such person. Landlord reserves the right to exclude from
the Building between the hours of 6:00 p.m. and 8:00 a.m. and at all
hours on Saturdays, Sundays, and holidays all persons who are not
occupants or their accompanied guests. Tenant shall be responsible for
all persons for whom it allows to enter the Building and shall be
liable to Landlord for all acts of such persons. Landlord reserves the
right to exclude or expel from the Building any persons who, in the
opinion of Landlord, are or appear to be intoxicated or under the
influence of liquor or drugs or who is in violation of any of the
rules and regulations of the Building. Landlord shall in no case be
liable for damages for error with regard to the admission to or
exclusion from the Building of any person. During the continuance of
any invasion, mob, riot, public excitement or other circumstances
rendering such action advisable in the opinion of Landlord, Landlord
reserves the right to prevent access to the Building by closing the
doors, or otherwise, for the safety of the occupants and protection of
the Building and property in the Building.
2. Subject to Section 42 of the Lease which shall be controlling, no
sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the Building.
3. The sidewalks, entry passages, corridors, halls, elevators and
stairways shall not be obstructed by Tenant, or used for any purpose
other than for ingress and egress. Tenant will insure that movers take
necessary measures required by Landlord to protect Building (e.g.,
windows, carpets, walls, doors and elevator cabs) from damage. The
halls, passages, exits, entrances, elevators and stairways are for the
use of Tenant and Tenant shall in all cases retain the right to
control and prevent access thereto by all persons whose presence, in
the judgment of Tenant, shall be prejudicial to the safety, character,
reputation and interests of the Building and its occupants. The toilet
rooms, toilets, urinals, wash bowls and other apparatus shall not be
used
EXHIBIT "F"
for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever, including, but not limited
to, coffee grounds shall be thrown therein, and the expense of any
breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the Tenant, if Tenant's employees, agents, clients,
customers, invitees and guests, shall have caused it.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung
or placed in, or used in connection with, any window or door of the
Premises without the prior written consent of Landlord. In any event
with the prior written consent of Landlord, all such items shall be
installed inboard of the Building standard window blinds and shall in
no way be visible from the exterior of the Building. Tenant shall not
remove the Building standard window blinds installed in the Premises.
No articles shall be placed or kept on the windowsills so as to be
visible from the exterior of the Building.
5. Tenant, Tenant's employees, agents, clients, customers, invitees and
guests shall maintain order in the Building, shall not make or permit
any improper noise in the Building or interfere in any way with other
occupants or those having business with them. Nothing shall be thrown
by Tenant, Tenant's employees, agents, clients, customers, invitees
and guests out of the windows or doors, or down the passages or atrium
of the Building. No rooms shall be occupied or used as sleeping or
lodging apartments at any time. No part of the Building shall be used
or in any way appropriated for gambling, immoral or other unlawful
practices, and no intoxicating liquor or liquors shall be sold in the
Premises or Building without the written consent of Landlord.
6. Tenant shall not, without the written consent of Landlord, put up or
operate any machinery or stove upon the Premises, or carry on any
mechanical business thereon, or use or allow to be used upon the
Premises, oil, burning fluids, camphene, gasoline or kerosene for
heating, warming or lighting. No cooking shall be done or permitted by
Tenant on the Premises except in conformity with law and then only in
the utility kitchen, if any, as set forth in Tenant's layout, which is
to be primarily used by Tenant's employees for heating beverages and
light snacks. No article deemed extra hazardous on account of fire and
no explosives shall be brought into the Premises. No offensive gases
or liquids will be permitted.
7. No sunscreen or other films shall be applied to the interior or
exterior surface of any window glass. All glass, locks and trimmings
in or upon the doors and windows of the Building shall be kept whole
and, when any part shall be broken, the same shall be immediately
replaced or repaired and put in order under the direction and to the
satisfaction of Landlord, and shall be left whole and in good repair.
Tenant shall not injure, overload or deface the Building.
8. Upon commencement of this Lease, Landlord shall provide, at no expense
to Tenant, two entrance door keys. The cost of providing additional
keys to Tenant shall be borne by Tenant. At the termination of this
Lease, Tenant shall return to Landlord all keys to doors in the
Building and all plastic cards for parking and entry to Building
furnished to Tenant by Landlord and those keys otherwise procured by
Tenant.
9. Tenant assumes any and all responsibility for protecting Premises from
theft, robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed.
10. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to
carry (i.e. fifty (50) pounds per square foot of live load) and which
is allowed by law. Tenant, Tenant's employees, agents, clients,
customers, invitees and guests, shall not bring in or take out,
position, construct, install or move any safe, business machine or
other heavy office equipment without first obtaining the consent of
the Landlord. In giving such consent, Landlord shall have the right,
in its sole discretion, to prescribe the weight permitted and the
position thereof, and the use and design of planks, skids or platforms
to distribute the weight thereof. All damage done to the Building by
moving or using any such heavy equipment or other office equipment or
furniture shall be repaired at the expense of Tenant. Safes and other
heavy office equipment will be moved through the halls and corridors
only upon steel bearing plates.
11. There shall not be used in any space, or in the public areas of the
Building, either by Tenant or others, any hand trucks except those
equipped with rubber tires and side guards or such other
material-handling equipment as Landlord may approve.
12. Tenant shall not cause any unnecessary labor by reason of such
Tenant's carelessness or indifference in the preservation of good
order and cleanliness of the Premises. Landlord shall in no way be
responsible to Tenant for any loss of property on the Premises however
occurring, or for any damage done to the effects of Tenant by the
janitor or any other employee or any other person. Tenant shall at the
end of each business day leave the Premises in a reasonably tidy
condition for the purpose of the performance of cleaning.
13. Landlord and its respective agents, employees and contractors shall
have the right to enter the Premises upon one day (1) prior notice to
Tenant (except in the event of emergency in which event no notice
shall be required) at all reasonable hours for the purpose of making
any repairs, alterations, or additions which it shall deem necessary
for the safety, preservation, or improvement of the Building; and
Landlord, its respective agents, employees and contractors shall be
allowed to take all material into and upon said Premises that may be
required to make such repairs, improvements, and additions, or any
alterations for the benefit of the Tenant without in any way being
deemed or held guilty of an eviction of the Tenant; and the rent
reserved shall be in no way xxxxx while said repairs, alterations, or
additions are being made; and the Tenant shall not be entitled to
maintain a setoff or counterclaim for damages against Landlord and its
respective agents, employees and contractors by reason of loss or
interruption to the business of the Tenant because of the prosecution
of any such work. All such repairs, decorations, additions, and
improvements shall be done during normal business hours, or, if
any such work is at the request of the Tenant to be done during any
other hours, the Tenant shall pay for all overtime costs.
14. Tenant shall observe and obey all parking and traffic regulations as
imposed by Landlord. The parking facilities shall be used by vehicles
that may occupy a standard parking area only.
15. Canvassing, soliciting, distributing of handbills or any other written
material, and peddling in the Building are prohibited and Tenant shall
cooperate to prevent the same. Tenant shall not make room-to-room
solicitation of business from other occupants in the Building.
16. Tenant will observe strict care and caution that all water faucets or
water apparatus are entirely shut off before the Tenant, Tenant's
employees, agents, clients, customers, invitees and guests leave the
Premises, and that all utilities shall likewise be carefully shut off
so as to prevent waste or damage, and for any default or carelessness,
the Tenant shall make good all injuries sustained by other occupants
of the Building. Tenant will comply with all energy conservation,
safety, fire protection and evacuation procedures and regulations
established by Landlord or any governmental agency.
17. Tenant shall store all trash and garbage within the interior of the
Premises. No materials shall be placed in the trash boxes or
receptacles if such materials are of such nature that it may not be
disposed of in the ordinary and customary manner of removing and
disposing of trash and garbage in this area without violation of any
law or ordinance governing such disposal. All trash, garbage and
refuse disposal shall be made only through entryways and elevators
provided for such purposes and at such times as Landlord may
designate.
18. Tenant shall give prompt notice to Landlord of any accidents to or
defects in plumbing, electrical fixtures, or heating apparatus so that
such accidents or defects may be attended to properly.
19. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients,
customers, invitees and guests. These Rules and Regulations are in
addition to and as a supplement of, and shall not be construed to in
any way otherwise modify, alter or amend, in whole or in part, the
terms, covenants, agreements and conditions of the Lease Agreement.
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is a guaranty of the Lease Agreement, the
terms of which are incorporated herein by this reference, dated
the___________________day of June, 2001 (hereinafter called the "Lease") by and
between Spring Creek Partners, LLC, a Georgia limited liability company
(hereinafter called the "Landlord") and Internet Security Systems, Inc., a
Georgia corporation (hereinafter called the "Tenant") demising certain office
space being known as Building 3 of Mount Xxxxxx Place to be situated in Land
Xxx 00 xx xxx 00xx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx.
The undersigned Internet Security Systems, Inc., a Delaware
corporation ("Guarantor") hereby acknowledges and agrees that because of
Guarantor's affiliation and relationship with Tenant, that such Lease is of
material benefit to Guarantor and that the execution of such Lease by Landlord
shall constitute beneficial consideration to Guarantor. Accordingly, for the
foregoing consideration and for Ten and No/100 Dollars ($10.00) and other good
and valuable consideration in hand paid by Landlord to Guarantor, the receipt
and sufficiency of which are hereby acknowledged by Guarantor, Guarantor
intending to be hereby legally bound, hereby becomes guarantor for the prompt
and faithful performance by Tenant, its successors and assigns, of the within
Lease and all of the terms, covenants and conditions thereof, including, but
not limited to, the payment by Tenant of the rental and all other sums to
become due under said Lease.
Guarantor agrees that (i) this obligation shall be binding upon
Guarantor without any further notice or acceptance hereof, but the same shall
be deemed to have been accepted by the execution of the within Lease; (ii)
immediately upon each and every default by Tenant upon demand upon Guarantor,
Guarantor shall pay to Landlord the sum or sums, in default and will comply
with or perform all of the terms, covenants and conditions of said Lease which
shall be binding upon the said Tenant, its successors or assigns, and provided
in said Lease; (iii) no extension, forbearance or leniency extended by Landlord
to the said Tenant shall discharge Guarantor, and Guarantor agrees at all times
it shall be liable notwithstanding same and notwithstanding the fact that
Guarantor has had no notice of any said default or of any said forbearance of
extension; (iv) Landlord and Tenant, without notice to or consent by Guarantor,
may, at any time or from time to time, enter into such modifications,
extensions, amendments or other covenants respecting the said Lease and that
Guarantor shall not be released thereby, it being intended that any joinder,
waiver, consent or agreement by Tenant by its own operation shall be deemed to
be a joinder, consent, waiver, or agreement by Guarantor with respect thereto
and that Guarantor shall continue as Guarantor with respect to the said Lease
as so modified, extended, amended or otherwise affected.
Guarantor further agrees to be bound by each and every covenant,
obligation, power and authorization, without limitation, in the said Lease,
with the same force and effect as if it were
designated in and had executed said Lease as Tenant thereunder, it being
specifically understood and agreed by Guarantor that its liability hereunder
shall be primary, and that in any right of action which may accrue to the
Landlord under said Lease, the Landlord may, at Landlord's option, proceed
against the undersigned with or without having commenced any action against or
having obtained any judgment against the Tenant or any assignee of Tenant.
This is a guaranty of payment and performance and not of collection.
The liability of the Guarantor under this Guaranty shall be direct and
immediate and not conditional or contingent upon the pursuit of any remedies
against Tenant or any other person, nor against security or liens available to
Landlord, its successors or assigns. Guarantor waives any right to require that
an action be brought against Tenant or any other person or to require that
resort be had to any security, and further waives any right, which Guarantor
may have pursuant to O.C.G.A. ss. 10-7-24.
Time is of the essence hereof. This instrument shall be governed by
the laws of the State of Georgia and shall be binding upon Guarantor's
successors and assigns. Guarantor shall not be entitled to assign either its
rights or obligations under this Guaranty, but Landlord shall be entitled to
assign this Guaranty to any successor of Landlord. Guarantor acknowledges and
agrees that performance of the Lease and this Guaranty shall occur in the State
of Georgia and that this Guaranty has been executed and delivered in the State
of Georgia and that the State of Georgia bears a substantial relationship to
the Lease and to this Guaranty. Guarantor hereby consents and submits to the
jurisdiction and venue of the courts of Xxxxxx County, Georgia and the Federal
District Court for the Northern District of Georgia and agrees that suit may be
validly brought against Guarantor in any of such courts. In the event a court
of competent jurisdiction shall declare any portion of this Guaranty invalid or
unenforceable, the remainder of this Guaranty shall survive any such partial
declaration of invalidity or unenforceability.
IN WITNESS WHEREOF, this instrument has been duly executed by
Guarantor by and through its duly authorized officers under seal as of the
dates and times set forth below.
GUARANTOR
Signed, sealed and delivered INTERNET SECURITY SYSTEMS, INC.,
in the presence of: a Delaware corporation
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxx
--------------------------- -------------------------------
Notary Public Title: CFO
----------------------------
Xxxxx X. Xxxxxxxxx Attest:
---------------------------
Name [please print] By: /s/ Xxxx Xxxxx
-------------------------------
Title: Asst. Secretary
My Commission Expires: 9/7/02 ----------------------------
[NOTARIAL SEAL] [CORPORATE SEAL]
FIRST AMENDMENT
TO
BUILDING 3 LEASE AGREEMENT
This FIRST AMENDMENT TO BUILDING 3 LEASE AGREEMENT (the "First
Amendment") is made and entered into as of July 27, 2001, by and among SPRING
CREEK PARTNERS, LLC, a Georgia limited liability company (hereinafter referred
to as the "Landlord") and INTERNET SECURITY SYSTEMS, INC., a Georgia
corporation (hereinafter referred to as the "Tenant").
BACKGROUND STATEMENT
Landlord and Tenant entered into that certain Mt. Xxxxxx Place
(Building 3) Lease Agreement, dated June 8, 2001 (the "Lease") and desire to
execute this First Amendment for the purpose of amending and modifying certain
terms and conditions of the Lease.
NOW THEREFORE, for and in consideration of the premises in the sum of
Ten and No/100 Dollars ($10.00) and for other good and valuable considerations,
the receipt, adequacy and sufficiency of which is hereby acknowledged, Landlord
and Tenant do hereby covenant and agree as follows:
1. The Lease is hereby amended and modified by deleting the date
of "August 1, 2001" appearing in each of line eight (8) and nine (9) of Special
Stipulation 1 of the Lease and by substituting in lieu thereof in each instance
the date of "October 1, 2001."
2. The Lease is hereby amended and modified by deleting the date
of "August 1, 2001" appearing in Line 29 of Section 4(b) of the Lease and by
substituting in lieu thereof the date of "October 1, 2001."
3. Except as expressly modified hereby, the Lease shall remain
in full force and effect without amendment or modification whatsoever and
Landlord and Tenant do hereby confirm and ratify the terms thereof. This First
Amendment shall be binding upon and inured to the parties hereto and their
respective successor, and assigns.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First
Amendment under seal as of the day and year first above written.
SPRING CREEK PARTNERS, LLC
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Its: Managing Member
---------------------------------------
INTERNET SECURITY SYSTEMS, INC,
a Georgia corporation
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Its: Chief Financial Officer
---------------------------------------
For Ten Dollars ($10.00) and other good and valuable consideration in hand paid
by Landlord to INTERNET SECURITY SYSTEMS, INC., a Delaware corporation
("Guarantor"), the receipt and sufficiency of which are hereby acknowledged by
Guarantor, Guarantor agrees that Guarantor's Guaranty Agreement of the Lease
Dated June 8, 2001 (the "Guaranty") shall remain in full force and effect and
shall constitute a Guaranty of the Lease as amended by this Amendment.
Guarantor, through its duly authorized officers, joins in the execution
provisions of this Amendment for the purpose of reaffirming its guaranty
obligations of the Lease as amended by this Amendment.
GUARANTOR:
INTERNET SECURITY SYSTEMS, INC., a
Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
Attest: Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
-----------------------------------
Title: Assistant Secretary
----------------------------------
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (the "First Amendment") is
made and entered into as of this 1st day of July, 2002, by and between SPRING
CREEK PARTNERS, LLC, a Georgia limited liability company ("Landlord"), and
INTERNET SECURITY SYSTEMS, INC., a Georgia corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant previously entered into that certain
Lease Agreement dated June 8, 2001 (the "Lease"), pursuant to the terms of
which Tenant has leased those certain "Premises" (as defined in the Lease)
located in Xxxxxx County, Georgia; and
WHEREAS, Landlord and Tenant now desire to modify and amend the Lease
as set forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and for other good and valuable consideration in hand paid by
each of the parties hereto to the other, the receipt, adequacy, and sufficiency
of which are hereby acknowledged, Landlord and Tenant do hereby covenant and
agree as follows:
1. Defined Terms. Terms used herein and denoted by their initial
capitalization shall have the meanings set forth in the Lease unless
specifically provided herein to the contrary.
2. Date of Lease. Landlord and Tenant acknowledge, stipulate and
agree that the effective date of the Lease is .and shall be June 8, 2001 for
all purposes.
3. Description of Land. The legal description of the Land
attached as Exhibit "B" to the Lease is hereby deleted and the legal
description of the Land attached as EXHIBIT "B" to this First Amendment is
substituted in lieu thereof.
4. Amendments to Existing Easement Documents. Subsection 4(b) of
the Lease is hereby modified and amended as follows:
(b) by deleting the phrase "Third Amendment to Lease"
appearing in the seventh (7th) from the last line from the bottom of
page 4 of the Lease, and by inserting in lieu thereof the phrase
"Fifth Amendment to Lease"; and
(b) by deleting the date "August 1, 2001" appearing
therein in the fourth (4th) line from the bottom of page 4 of the
Lease, and by inserting in lieu thereof the phrase "prior to the
commencement of construction of the Building under this Lease".
5. Additional Parking Level Carry Costs. Landlord and Tenant
hereby acknowledge, stipulate and agree that the original Landlord hereunder,
Spring Creek Partners, LLC ("Spring Creek") shall look solely to Tenant outside
of the Lease for payment of all amounts payable by
Tenant to Landlord pursuant to the terms of Section 4(c) of the Lease in
respect of Tenant's payment or reimbursement to Landlord of the Additional
Parking Level Carry Costs; and as a consequence thereof, Section 4(c) of the
Lease is hereby deleted in its entirety and shall be of no further force and
effect whatsoever.
6. Operating Expenses of the Base Year. Landlord and Tenant
acknowledge, stipulate and agree that for all purposes of the Lease, including
Sections 6 and 8 and Exhibit "E" thereof, the Taxes for the Operating Expense
Base Year, on an adjusted and grossed up basis, shall be deemed to be the
product of $1.50 per square foot, multiplied by the number of rentable square
feet contained in the Premises (the "Tax Expense Base Year Amount") and that
the Tax Expense Base Year Amount shall be deemed final and not subject to
adjustment under any circumstances and without regard to the validity or
enforceability of any tax abatement agreement now or hereafter obtained by
Tenant pursuant to Special Stipulation 23 (as restated in Paragraph 19 of this
Amendment) or otherwise. For purposes hereof, the term "Taxes" shall have the
meaning described in the fifth (5th) item appearing on the first page of
Exhibit "E" (Operating Expenses-Definitions) attached to the Lease. All
Operating Expenses other than Taxes are referred to as "Non-Tax Operating
Expenses," and the Operating Expenses other than Taxes that are actually
incurred for the Operating Expense Base Year are herein referred to as the
"Non-Tax Expense Base Year Amount." For any period during the Term of the Lease
in which the Premises shall be subject to property tax abatement as the result
of Tenant's efforts pursuant to Special Stipulation 23 of the Lease, the
provisions of the Lease with respect to the determination and adjustment of
Operating Expenses shall be applied separately with respect to the Non-Tax
Operating Expenses and Taxes, utilizing the Non-Tax Expense Base Year Amount
and the Tax Expense Base Year Amount, respectively. Subject to the limitations
contained in Special Stipulation 3 of the Lease (as restated in this First
Amendment), Tenant agrees that it shall pay as additional rental pursuant to
Section 8 of the Lease the amount by which (if any) the Taxes in any calendar
year exceed the Tax Expense Base Year Amount. To the extent that such Taxes are
less than the Tax Expense Base Year Amount as a result of a property tax
abatement obtained by Tenant pursuant to Special Stipulation 23 (as restated in
Paragraph 19 of this First Amendment), the "Tax Savings" (as defined in said
Special Stipulation) shall be applied to reduce the additional rent otherwise
payable by Tenant pursuant to Section 8 of the Lease with respect to Taxes. If
and to the extent the Premises were to be subjected to a "rollback" of Taxes
for any period during Tenant's tax abatement period (notwithstanding any
provisions of Tenant's tax abatement agreement to the contrary), Landlord and
Tenant, upon the request of either party, shall make such adjustments to
Operating Expenses with respect to any periods which may be subject to any such
rollback of Taxes so as to ensure that Landlord's obligation shall be the
payment of any Taxes up to the Tax Expense Base Year Amount and Tenant's
obligation shall be the payment of any Taxes in excess of the Tax Expense Base
Year Amount. Nothing contained herein shall affect Tenant's rights or
Landlord's obligations pursuant to the first grammatical paragraph of Section
17(a) of the original Lease with respect to the adjustment of additional rental
in the event Tenant elects to provide its own janitorial services to the
Premises.
7. Destruction of Premises. Section 20 of the Lease is hereby
deleted in its entirety and the following Section 20 is hereby inserted in lieu
thereof:
2
20. DESTRUCTION OF PREMISES.
20.1 Reciprocal Termination Rights.
(a) If the Premises are damaged or destroyed,
in whole or in part, by a fire or other casualty ("Casualty"),
Landlord shall obtain the determination of Landlord's Architect (as
defined in Section 20.4 hereof) of the Estimated Repair Period (as
defined in Section 20.3 hereof) on or before the Determination Date
(as also defined in Section 20.3 hereof). Unless this Lease is
terminated by Landlord or Tenant pursuant to this Section 20, Landlord
shall repair and restore the Premises, subject to and as provided in
Section 20.3 hereof, within the Estimated Repair Period in each case.
For purposes of this Section 20, and the time periods referenced
herein, the date of the related Casualty is herein referred to as the
"Damage Date."
(b) If less than twenty-five percent (25%) of
the number of rentable square feet of space contained in the Building
are rendered untenantable as a result of a Casualty, then Landlord
shall repair and restore the Premises as provided in Section 20.3
hereof within one hundred twenty (120) days unless the Estimated
Repair Period is more or less than one hundred twenty (120) days, but
not more than one hundred eighty (180) days, in which event Landlord
shall repair and restore the Premises within the Estimated Repair
Period; provided, however, that if in the reasonable determination of
Landlord's Architect given in writing to both parties pursuant to
Section 20.3 hereof on or before the Determination Date, the Estimated
Repair Period is more than one hundred eighty (180) days after the
Damage Date, either party may terminate this Lease by giving the other
party notice within ten (10) days after receipt of such determination
of Landlord's Architect.
(c) If more than twenty-five percent (25%) but
up to fifty percent (50%) of the number of rentable square feet of
space contained in the Building are rendered untenantable as a result
of a Casualty, and if in the reasonable determination of Landlord's
Architect given in writing to both parties pursuant to Section 20.3
hereof on or before the Determination Date, the Estimated Repair
Period is more than one hundred eighty (180) days after the Damage
Date, either party may terminate this Lease by giving the other party
notice within ten (10) days after receipt of such determination of
Landlord's Architect. If the Lease is not so terminated, then Landlord
shall repair and restore the Premises as provided in Section 20.3
hereof within the Estimated Repair Period.
(d) If more than fifty percent (50%) of the
number of rentable square feet of space contained in the Building are
rendered untenantable as a result of a Casualty, and if in the
reasonable determination of Landlord's Architect given in writing to
both parties pursuant to Section 20.3 hereof on or before the
Determination Date, the Estimated Repair Period is more than two
hundred seventy - (270) days after the Damage Date, either party may
terminate this Lease by giving the other party notice within ten (10)
days after receipt of such determination of
3
Landlord's Architect. If the Lease is not so terminated, then Landlord
shall repair and restore the Premises as provided in Section 20.3
hereof within the Estimated Repair Period.
20.2 Tenant's Additional Termination Rights. In addition
to the termination rights granted to Tenant under Section 20.1 above,
if the Premises are damaged or destroyed by Casualty, and if the
Premises are not restored in all material respects by Landlord to the
extent required of Landlord hereunder within the Estimated Repair
Period (as such period may be extended for delays outside of
Landlord's control as set forth herein below), then at any time
following the expiration of the Estimated Repair Period and prior to
substantial completion of such repair and restoration, Tenant shall
have the right to terminate this Lease by giving written notice
thereof to Landlord; provided, however, that if Landlord is delayed as
a result of changes, deletions or additions in construction requested
by Tenant, or other delays or interference caused by the acts or
omissions of Tenant or its agents, contractors or employees, or as a
result of force majeure, the Estimated Repair Period shall be extended
for the amount of time Landlord is so delayed; and provided further
that if Tenant exercises such election to terminate and Landlord shall
complete the repair and restoration of the Premises to the extent
required of Landlord hereunder within thirty (30) days following the
date of Tenant's notice of termination, said notice of termination
shall be nullified and the Lease shall continue in full force and
effect. Unless the delay is caused by Tenant, its agents, contractors
or employees, the extension under the first proviso in the preceding
sentence shall not exceed an additional ninety (90) days.
20.3 Landlord's Restoration Obligations. Promptly upon
the occurrence of any Casualty, Landlord shall require Landlord's
Architect to prepare a written determination for the benefit of
Landlord and Tenant of said Architect's estimation of the time period
reasonably required from the Damage Date, in light of all
circumstances then known, to complete the restoration of the Premises,
said written determination to be made and delivered to Landlord and
Tenant as soon as may be practicable under the circumstances and in
any event within thirty (30) days after the related Casualty (the
"Determination Date"); provided, however, that if Warner, Summers,
Ditzel, Benefield, Xxxx & Associates, Inc. or the principal(s) of said
firm who designed and are familiar with the plans and specifications
for the Building are not available to serve as Landlord's Architect,
the Determination Date shall be thirty (30) days after the date on
which Landlord shall have selected, and Tenant shall have approved,
another architect to serve as Landlord's Architect, such selection and
approval to be made as promptly as practicable. The period of time
estimated by Landlord's Architect for the completion of repairs to the
Premises, as set forth in said written notice from Landlord's
Architect to Landlord and Tenant and as measured from the related
Damage Date, is herein referred to as the "Estimated Repair Period."
If neither Landlord nor Tenant has the right to terminate this Lease
pursuant to any of the provisions of this Section 20, or if the party
or parties that have the right to terminate this Lease do not
exercise such right as herein provided, then, subject to the last
sentence of this Section 20.3, Landlord shall have the
4
property damaged by such Casualty repaired or restored to the
condition in all material respects that existed prior to the Casualty
at the sole expense of the Landlord. If Landlord is obligated
hereunder to repair and restore such damage, Landlord shall use all
reasonable efforts in good faith to commence and thereafter to
prosecute to completion the repair and restoration of such damage as
speedily as may be practicable under the circumstances and to complete
such repair and restoration within the Estimated Repair Period.
Landlord further agrees to allow Tenant an abatement in the Base
Monthly Rental for such time as the Premises are untenantable or
proportionately for such portion of the Premises as shall be
untenantable, and Tenant covenants and agrees that the terms of this
Lease shall not be otherwise affected. In no event shall Landlord be
required to repair or replace any trade fixtures, furniture, equipment
or other property belonging to Tenant, nor shall Landlord be required
to rebuild, repair or replace any part of the partitions, fixtures,
additions or other improvements which may have been placed in or about
the Premises by Tenant.
20.4 Landlord's Architect; Termination Conditions. For
purposes of this Section 20, the term "Landlord's Architect" shall
mean Warner, Summers, Ditzel, Benefield, Xxxx & Associates, Inc.,
except that if said firm is then no longer in existence or if the
principal(s) of said firm who designed and are familiar with the plans
and specifications for the Buildings (i.e., Xxxxx Xxxxxx and Xxxxx
Xxxxxxxxxxxx) shall then have retired or withdrawn from said firm or
shall then be disabled or deceased, or if said firm declines to serve
as Landlord's Architect, the term "Landlord's Architect" shall mean a
reputable, qualified architect licensed in Georgia selected by
Landlord, the selection of whom shall be subject to Tenant's
reasonable approval (which shall not be unreasonably denied, delayed
or conditioned). In the event of any termination of this Lease by
either party pursuant to this Section 20, Rent hereunder shall be
apportioned and paid to the date of termination.
20.5 Termination Rights During Last Eighteen (18) Months;
Uninsured Loss. Notwithstanding anything in this Section 20 to the
contrary, if the Premises are substantially damaged or destroyed by
Casualty at any time during the last eighteen (18) months of the Term,
then Landlord may terminate this Lease upon notice to Tenant within
thirty (30) days after the Damage Date; provided that if Landlord
exercises such election to terminate and Tenant has any unexercised
option to extend the Term, then Tenant may nullify Landlord's asserted
termination of this Lease by exercising Tenant's right to extend the
Term, pursuant to Special Stipulation 13 of the Lease, for the
applicable renewal term within fifteen (15) days after receipt of
Landlord's notice of termination. Also, notwithstanding anything in
this Section 20 to the contrary, if the Premises are substantially
damaged or destroyed by Casualty, and such Casualty occurs during the
last eighteen (18) months of the Term, Tenant may terminate this Lease
upon notice to Landlord within thirty (30) days after the Damage Date.
Also, notwithstanding anything in this Section 20 to the contrary,
if the Premises are substantially damaged as the result of a Casualty
not required to be insured against by Landlord hereunder or if
5
the Premises are substantially damaged by Casualty required to be
insured against by Landlord but the insurance company is insolvent and
financially unable to pay the proceeds which otherwise are payable
(through no fault of Landlord), Landlord shall have the right to
terminate this Lease by notice to Tenant given within sixty (60) days
after the Damage Date. As used in this Section 20, the term
"substantially damaged" shall mean such damage that the cost of repair
and restoration thereof is reasonably estimated by Landlord's
Architect to exceed Three Million and No/100 Dollars ($3,000,000).
20.6 Reaffirmation of Lease. Upon the occurrence of
any damage to, or destruction of the Premises, and provided that
either Tenant does not have the right hereunder to terminate this
Lease as a result of such damage or if Tenant does have the right
hereunder to terminate this Lease but has elected not to (or has
failed to) terminate this Lease as provided herein, Tenant shall,
within ten (10) days after receipt by Tenant of a written request
therefor from Landlord and the receipt by Tenant from Landlord or
Landlord's Architect, as the case may be, of all notices, elections
and other information Tenant may reasonably require in order to make
any election permitted under this Section 20, provide Landlord with a
written reaffirmation of this Lease, including an acknowledgment that
Tenant does not have the right to terminate this Lease as a result of
such damage or that Tenant had the right to terminate this Lease but
has elected not to (or has failed to) terminate this Lease as herein
provided.
8. Condemnation. Landlord and Tenant mutually acknowledge and
agree that the Land is and has been subject to certain condemnation proceedings
initiated by the Georgia Department of Transportation ("DOT") pursuant to that
certain Condemnation of Civil Action File #2002CV52072, Department of
Transportation vs. 0.793 acres of land et al. filed April 19, 2002, relating to
certain right-of-way takings that have affected the eastern boundary line of
the Land adjacent to the western right-of-way line of Georgia 400 and the
northerly boundary line of the Land adjacent to the southerly right-of-way line
of Mount Xxxxxx Highway (the "Taking Proceedings"). Landlord and Tenant further
acknowledge and agree that as part of the Taking Proceedings, Landlord, Mount
Xxxxxx Place Partners, LLC ("Mount Xxxxxx") and DOT have entered into a certain
settlement agreement dated November 28, 2001, (the "DOT Taking Agreement")
pursuant to the terms of which DOT has agreed that the existing driveway onto
the Land from Mount Xxxxxx Highway may remain open and may continue to be used
until DOT has let its construction contract for its road improvement work
(Project NH-056(52)), but that the exact location of such driveway providing
ingress and egress may vary during DOT's construction project (the "Existing
Driveway"). Tenant is familiar with and has approved the location and
configuration of the Existing Driveway, which is depicted on EXHIBIT "C"
attached hereto and made a part hereof, and understands and agrees that DOT may
require the relocation and reconfiguration of such Existing Driveway from time
to time, all without affecting Tenant's obligations under the Lease. Tenant
further acknowledges and agrees that it is familiar with and has approved (i)
the condition imposed on the rezoning of the Land, as set forth in the Minutes
of the Regular Meeting of the Xxxxxx County Board of Commissioners on March 1,
2000, which limits the Premises to no more than one right-in/right-out
exit/entrance on Mount Xxxxxx Highway, and (ii) the location and configuration
of that certain curb cut and joint driveway/local
6
service road to be constructed by DOT along the west side of the Premises and
the east side of the adjoining property, as depicted on that certain plan
attached hereto as EXHIBIT "D" (the "Permanent Joint Access"). Tenant, by its
execution hereof, hereby acknowledges, consents to and approves the Existing
Driveway, the relocation and reconfiguration of such Existing Driveway as may
be required from time to time by DOT, and the Permanent Joint Access. Tenant
further acknowledges and agrees that the relocation and/or reconfiguration of
the Existing Driveway, including, without limitation, the intermittent or
temporary closure and/or disruption of the same, and the construction of the
Permanent Joint Access, including without limitation, the intermittent or
temporary closure and/or disruption of the same until completion of
construction of the Permanent Joint Access, shall not under any circumstances
whatsoever give rise to a right of Tenant to terminate the Lease pursuant to
any terms or provisions of the Lease, including without limitation, Section 21
thereof, nor result in a constructive eviction, claim for damages, claim for
reduction or abatement of rent or other claim by Tenant under the Lease arising
out of or in connection with the Taking Proceedings.
9. Site Plan Approval. By its execution and delivery of this
First Amendment, Tenant hereby approves and consents to the site plan of the
Premises, after giving effect to the Taking Proceedings referenced above and
providing for the Existing Driveway as depicted on EXHIBIT "F" attached hereto
and made a part hereof, and to the preliminary site plan of the Premises after
giving effect to the Taking Proceedings referenced above and providing for the
Permanent Joint Access contemplated therein as, if and when DOT completes the
Permanent Joint Access contemplated therein, all as depicted on EXHIBIT "G"
attached hereto and made a part hereof.
10. Subordination. Supplementing Section 32 of the Lease, Tenant
agrees that any "certificate" confirming the subordinate nature of the Lease to
any Security Deed may itself be in the form of a subordination, non-disturbance
and attornment agreement between the applicable lender and Tenant, and Tenant
agrees that upon request by Landlord, Tenant shall join in and deliver such
subordination, non-disturbance and attornment agreement, provided that same is
in a commercially reasonable form utilized by institutional lenders.
11. Sequence of Building 3 Target Commencement Dates. Special
Stipulation 2(b) of the Lease is hereby modified and amended by deleting the
date "December 31, 2001" and inserting in lieu thereof the date "May 31, 2002".
12. Property Tax Increase. Tenant hereby agrees that Special
Stipulation 3 of the Lease shall be inapplicable to any transfer of the
Premises that may hereafter occur to the Development Authority of Xxxxxx County
(the "Authority") or thereafter from the Authority to Landlord or to any
determination by a governmental authority as to the invalidity or
unenforceability of any tax abatement agreement Tenant may obtain.
7
13. Deletion of Additional Landlord Contribution to Tenant Costs.
Landlord and Tenant hereby acknowledge and agree that Tenant has not heretofore
exercised its right under the first sentence of Special Stipulation 4 of the
Lease to cause Landlord to pay for up to $2.50 per rentable square foot of the
Premises of the Tenant Costs over and above the total $25.00 per rentable
square foot Tenant Improvement Allowance, and Tenant has determined that Tenant
will not exercise such right under the first sentence of Special Stipulation 4
of the Lease. Accordingly, the first sentence of Special Stipulation 4 of the
Lease is hereby deleted.
14. Participation After Sale of Building. Landlord and Tenant
hereby acknowledge, stipulate and agree that Special Stipulation 5 of the Lease
shall be binding only on the initial Landlord, Spring Creek. Spring Creek has
disclosed to Tenant that Spring Creek has entered into a contract to sell the
Building to Xxxxx Capital, Inc., a Georgia corporation (Xxxxx Capital, Inc. and
its permitted assigns, including, without limitation, Xxxxx Operating
Partnership, L.P., a Delaware limited partnership, are herein referred to as
"Xxxxx"). Immediately upon any consummation of the purchase and sale of the
Building by and between Spring Creek and Xxxxx and the assignment to and
assumption by Xxxxx of the Lease, Special Stipulation 5 of the Lease shall be
deemed automatically deleted in its entirety and shall have no further force or
effect whatsoever. Notwithstanding the foregoing, Spring Creek shall remain
responsible for the payment to Tenant of all amounts payable to Tenant upon the
sale of the Building to Xxxxx pursuant to Special Stipulation 5; Tenant shall
look solely to Spring Creek for the payment of any such sums; and neither Xxxxx
nor any other successor landlord shall have any liability whatsoever to Tenant
pursuant to or arising out of said Special Stipulation 5, or be subject to any
claim, counterclaim, demand, right of set-off or reduction or abatement in rent
arising out of said Special Stipulation 5. Tenant further agrees to cooperate
with Spring Creek in good faith in calculating the sums, if any, payable to
Tenant under Special Stipulation 5 of the Lease in connection with any sale of
the Building by Spring Creek.
15. Letter of Credit. Notwithstanding any provision of the Lease
to the contrary, Tenant agrees to deliver to Landlord an irrevocable, standby
letter of credit in the original principal amount of $2,500,000.00, as
contemplated pursuant to and meeting the requirements of Special Stipulation 6
of the Lease, within ten (10) days after written request from Landlord.
16. Parking. By its execution hereof, Tenant hereby acknowledges
and agrees that Landlord has timely satisfied all of the requirements for
construction of parking spaces in, and the
17. addition of another level to, the Buildings 1 and 2 Parking
Deck pursuant to Section 3 of the Lease and the first sentence of Special
Stipulation 10 of the Lease.
18. Special Stipulation 8 Representation. Landlord and Tenant
acknowledge that the representation made by Landlord in the first (1st
sentence) of Special Stipulation 8 of the Lease is effective only as of the
date of the execution and delivery of the Lease. The foregoing acknowledgment
shall not be deemed to release Spring Creek from any obligations incurred by
Spring Creek pursuant to Special Stipulation 8 at any time prior to the date on
which Spring Creek may no longer be the Landlord under the Lease, nor shall the
foregoing acknowledgment be deed to release Landlord from its continuing
obligations pursuant to the second (2nd) sentence of Special Stipulation 8 of
the Lease.
8
19. Emergency Power Generators. Special Stipulation 17 of the
Lease provides for the installation by Landlord as part of the initial Tenant
Improvements to the Premises of one or more emergency power generators
(collectively, the "Generator") and associated fuel storage tanks
(collectively, "FST") in accordance with specifications submitted by Tenant and
approved by Landlord as provided in Special Stipulation 17 of the Lease, and
which installation shall be subject to Landlord's receipt of all permits and
approvals required from all applicable governmental authorities having
jurisdiction with respect thereto. Tenant shall be solely responsible during
the Term of the Lease for conducting all monitoring and maintenance of the
Generator and FST in accordance with all applicable requirements of
governmental authorities and in accordance with the equipment specifications of
the manufacturers thereof, all at Tenant's sole cost and expense. If any
Generator should cease to function properly, however, Tenant may elect not to
repair or replace such Generator, or otherwise to keep such Generator in
operating condition, so long as the Tenant's election not to maintain the
Generator in operating condition shall not adversely affect the environmental
condition of the Premises. Within ninety (90) days prior to the expiration of
the Lease, or if the Lease shall terminate prior to the natural expiration of
the Term of the Lease, within thirty (30) days after the termination of the
Lease, Tenant shall provide to Landlord written confirmation to Landlord from
an environmental consultant reasonably approved by Landlord that the FST and
Generator have not impacted soil or groundwater at the Premises. In the event
Tenant is unable or fails to provide such confirmation to Landlord within
thirty (30) days after written notice from Landlord to Tenant requesting the
same, then and in that event, Landlord shall have the right to require Tenant
to remove and dispose of the FST and Generator in accordance with all
applicable Environmental Laws and to repair any damage to the Premises caused
by such removal and to remediate and clean up any impacted soil or groundwater
at the Premises, all at Tenant's sole cost and expense. Unless Landlord
exercises such option to cause Tenant to remove and dispose of the FST and
Generator as provided in the preceding sentence, Tenant shall have no right to
remove, and shall not remove, the FST and Generator upon the termination or
expiration of the Lease. Tenant shall operate and, if applicable, remove (or
close in place) the FST and remove Generator in strict compliance with all
applicable federal, state and local laws, codes and regulations.
Tenant shall immediately notify Landlord and provide copies upon
receipt of all written complaints, claims, citations, demands, inquiries,
reports or notices relating to the FST or the Generator.
Notwithstanding any other provision in the Lease, Landlord shall have
the right, but not the obligation, to enter the Premises or to take such other
actions as it deems necessary to respond to, clean up, remove, resolve or
minimize the impact of, or otherwise manage, any Hazardous Substances released
as a result of the operation or existence of the FST or Generator; provided,
however, that, except in an emergency, Landlord shall take such action only
after providing at least ten (10) days written notice to Tenant of the
existence of conditions requiring action and the failure by Tenant to address
such conditions to the satisfaction of the Landlord. All reasonable costs and
expenses incurred by Landlord in the exercise of any such rights, which costs
and expenses result from the violation of the covenants and agreements of
Tenant contained in this Paragraph, shall be deemed additional rent under the
Lease and shall be payable by Tenant upon demand.
9
Tenant agrees to and shall indemnify Landlord and hold Landlord
harmless from and against (i) the negligence of Tenant or its employees, agents
or contractors in the operation and removal of the FST and Generator and (ii)
environmental liabilities of any kind whatsoever associated with the FST or the
Generator. Landlord agrees to and shall indemnify Tenant and hold Tenant
harmless from and against the negligence of Landlord or its employees, agents
or contractors in the exercise of any rights of Landlord in connection with the
FST and Generator.
18. Special Stipulation 22 Amendment. Special Stipulation 22 of
the Lease is hereby modified and amended by deleting the phrase, "and not
thereafter," appearing in the sixth (6th) line of said Special Stipulation.
19. Tax Abatement and Tax Gross-Up Provision. Special Stipulation
23 of the Lease is hereby deleted in its entirety and the following Special
Stipulation 23 is hereby inserted in lieu thereof:
23. In furtherance of Tenant's desire to obtain
tax abatements with respect to the Premises pursuant to a
sale-leaseback taxable bond transaction comparable to that
certain sale-leaseback transaction effected by and between
Mount Xxxxxx Place Partners, LLC and the Development
Authority of Xxxxxx County (the "Authority") in respect of
the premises leased by Tenant pursuant to the Buildings 1 and
2 Lease, Landlord agrees, upon the request of Tenant and at
Tenant's sole cost and expense (including, without
limitation, the agreement of Tenant to pay or reimburse
Landlord's actual and reasonable attorneys' fees and expenses
incurred in connection with any such endeavor), to cooperate
with Tenant in obtaining the benefits of a similar tax
abatement for the Premises under this Lease. It is expressly
understood and agreed that Landlord makes no representations
or warranties of any kind whatsoever in respect of any tax
abatement agreement that may be obtained by Tenant; it being
Landlord's sole obligation, at no cost or expense to
Landlord, to cooperate in good faith with Tenant, at Tenant's
expense, in obtaining and maintaining a tax abatement for the
Premises for so long as may be permissible under Georgia law.
The failure or inability of Tenant to obtain such a tax
abatement for the Premises shall in no event affect the
obligations of Tenant under this Lease. In the event Tenant
is successful in obtaining such property tax abatement for
the Premises under this Lease, then in any calendar year
during the Term of the Lease while such tax abatement is in
effect that the actual Taxes paid or incurred by Landlord
with respect to the Premises are less than the product of
$1.50 per square foot, multiplied by the number of rentable
square feet of space in the Premises (the amount by which
said product exceeds the actual Taxes in any calendar year
during the Term while such tax abatement is in effect being
herein referred to as the "Tax Savings"), then the amount of
such Tax Savings shall be applied to reduce the
10
additional rent otherwise payable by Tenant pursuant to
Section 8 of the Lease in respect of Taxes. For purposes of
calculating Operating Expenses for the first year of the Term
or any other calendar year during the Term, including the
Operating Expense Base Year of 2003, Operating Expenses shall
be calculated based upon a fully assessed and occupied
Xxxxxxxx."
00. Costs of Utilities. The following is hereby added as item 27
in the list of "Operating Expenses Exclusions" attached as Exhibit "E" to the
Lease:
27. The cost of all utilities for the Premises,
including the cost of electricity, gas, water and sewer
services, it being acknowledged that Tenant shall be
responsible for the cost of such utilities as provided in
Section 17 of this Lease and Special Stipulation 24.
21. Miscellaneous. Except as modified by this First Amendment,
the Lease shall otherwise remain unmodified and in full force and effect and
the parties do hereby ratify and confirm the terms thereof. In the event of
conflict or inconsistency between the terms and conditions of the Lease and the
terms and conditions of this First Amendment, the terms of this First Amendment
shall control and prevail and govern the rights, liabilities and obligations of
the parties. This First Amendment may be executed in counterparts and/or with
counterpart signature pages, all of which together shall constitute a single
agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
11
IN WITNESS WHEREOF, the parties, through their duly authorized
officers and manager, respectively, have executed this First Amendment the day
and year first above written.
"TENANT":
INTERNET SECURITY SYSTEMS, INC., a
Georgia corporation
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
--------------------------------------
Title: CFO
-------------------------------------
Attest: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
--------------------------------------
Title: Secretary
-------------------------------------
[CORPORATE SEAL]
[SIGNATURES CONTINUE ON NEXT PAGE]
12
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
"LANDLORD":
SPRING CREEK PARTNERS, LLC,
a Georgia limited liability company
By: /s/ Xxxx X. Xxxxxxx
--------------------------------- (SEAL)
Name: Xxxx X. Xxxxxxx
Title: Manager
13
CONSENT AND JOINDER OF LEASE GUARANTOR
For Ten and No/100 Dollars ($10.00) and other good and valuable
consideration in hand paid by Landlord to Internet Security Systems, Inc., a
Delaware corporation (successor by name change to ISS Group, Inc., a Delaware
corporation) ("Guarantor"), the receipt and sufficiency of which are hereby
acknowledged by Guarantor, Guarantor agrees that Guarantor's Guaranty Agreement
of the Lease dated June __, 2001 (the "Guaranty") shall remain in full force and
effect and shall constitute a Guaranty of the Lease, as amended by this First
Amendment to Lease Agreement. Guarantor, through its duly authorized officers,
joins in the execution provisions of this First Amendment for the purpose of
reaffirming its guaranty obligations, as amended by this First Amendment.
"GUARANTOR":
Signed, sealed and delivered INTERNET SECURITY SYSTEMS, INC.,
in the presence of: a Delaware corporation
/s/ Xxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
--------------------------- -------------------------------
Unofficial Witness Name: Xxxxxxx Xxxxxxx
-----------------------------
Title: CFO
Xxxxxxxx Xxxxxxxxxxx ----------------------------
---------------------------
Notary Public Attest:
By: /s/ Xxxx Xxxxx
-------------------------------
[NOTARIAL SEAL] Name: Xxxx Xxxxx
-----------------------------
Title: Asst. Secretary
----------------------------
[CORPORATE SEAL]
14
EXHIBIT B
LEGAL DESCRIPTION
BUILDING 3
MOUNT XXXXXX PLACE
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Xxx 00 xx xxx
00xx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and being more particularly described as
follows:
TO FIND THE POINT OF BEGINNING, commence at Xxxxxx County GIS Monument
F451 and run thence South 51 degrees 55 minutes 13 seconds East, a distance of
4,769.3 feet to the point of intersection of the southerly existing right-of-way
line of Mount Xxxxxx Highway (70-foot right-of-way) and the easterly
right-of-way line of Xxxxxxxx Road (right-of-way varies); run thence along said
easterly right-of-way line of Xxxxxxxx Road South 00 degrees 06 minutes 00
seconds East, a distance of 95.78 feet to a one-half inch (1/2") rebar found;
thence leaving said easterly existing right-of-way line of Xxxxxxxx Road
(right-of-way varies), run thence North 89 degrees 53 minutes 30 seconds East, a
distance of 199.97 feet to a one-half inch (1/2") rebar found, said point being
THE POINT OF BEGINNING; FROM THE POINT OF BEGINNING AS THUS ESTABLISHED, run
thence North 00 degrees 32 minutes 30 seconds West, a distance of 121.43 feet to
a point located on the southerly existing right-of-way line of Mount Xxxxxx
Highway; run thence along said southerly existing right-of-way line of Mount
Xxxxxx Highway (right-of-way varies) North 89 degrees 27 minutes 50 seconds
East, a distance of 20.05 feet to a point; continue thence along said existing
right-of-way line of Xxxxx Xxxxxx Xxxxxxx Xxxxx 00 degrees 32 minutes 10 seconds
West, a distance of 73.77 feet to a point; continue thence along said southerly
existing right-of-way line of Xxxxx Xxxxxx Xxxxxxx Xxxxx 00 degrees 21 minutes
26 seconds East, a distance of 85.63 feet to a point; continue thence along said
southerly existing right-of-way line of Xxxxx Xxxxxx Xxxxxxx Xxxxx 00 degrees 55
minutes 06 seconds East, a distance of 49.47 feet to the point of intersection
of the southerly existing right-of-way line of Mount Xxxxxx Highway and the
westerly existing right-of-way line of Georgia 400 (right-of-way varies); run
thence along said westerly existing right-of-way line of Georgia 400 South 02
degrees 52 minutes 39 seconds West, a distance of 213.78 feet to a point; run
thence southerly along the westerly existing right-of-way line of Georgia 400
(right-of-way varies) South 02 degrees 52 minutes 39 seconds West, a distance of
8.85 feet to a point; thence leaving said westerly existing right-of-way line of
Georgia 400 (right-of-way varies), run thence North 89 degrees 53 minutes 58
seconds West, a distance of 125.81 feet to a point; run thence North 00 degrees
06 minutes 30 seconds West, a distance of 8.38 feet to a point; run thence South
89 degrees 53 minutes 30 seconds West, a distance, of 13.99 feet to a one-half
inch (1/2") rebar found, and THE POINT OF BEGINNING.
Said property containing_______________square feet or______________
acres, more or less, and being shown and depicted on that certain plat of
survey captioned "Boundary Survey, New Right-of-Way along Mt. Xxxxxx Hwy.,"
prepared for Mount Xxxxxx Place Partners, LLC by HDR/XX Xxxxxx, under
certification and seal of Xxxxx X. Xxxxxxxx, PLS,
Georgia Registered Land Surveyor No. 2659, dated March 27, 2001, last revised
May 8, 2002, which survey is incorporated herein and made a part hereof by this
reference.
TOGETHER WITH those certain rights and easements as described in and
pursuant to the terms and conditions of that certain [Reciprocal Easement
Agreement by and among Mount Xxxxxx Place Partners, LLC, Spring Creek Partners,
LLC and the Development Authority of Xxxxxx County, Georgia
dated_____________________________________, 2002, to be recorded in the records
of Xxxxxx County, Georgia.]
ALSO TOGETHER WITH those certain rights and easements as set forth in
that certain QuitClaim Deed by and between X.X. Xxxxxxx & Associates, Inc. and
Spring Creek Partners, LLC dated as of November 30, 1999, and recorded in Book
28068, page 265 of the records of Xxxxxx County, Georgia and as contained in
and pursuant to the terms and conditions of that certain Storm and Sanitary
Sewer Agreement by and among Investment Capital Company/Mount Xxxxxx, Xxxx
Xxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxx and Xxxx Xxxxxx Xxxxxx, Co-Trustees
under Declaration of Trust Designated Xxxxxx Trust dated July 19, 1982, and
recorded in Book 8920, Page 238 of the records of Xxxxxx County, Georgia.
EXHIBIT "C"
[FLOOR PLAN GRAPHIC]
SITE PLAN WITH EXISTING DRIVEWAY
EXHIBIT "D"
[FLOOR PLAN GRAPHIC]
SITE PLAN WITH PERMANENT JOINT ACCESS
