EXHIBIT 10.18
LEASE AGREEMENT
by and between
COUSINS PROPERTIES INCORPORATED
("Landlord")
and
THE SYSTEM WORKS, INC.
dated
JUNE 8, 1993
for
Suite Number 500
containing
63,688 square feet of Rentable Floor Area
Term: 120 months
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
FORM II
5/28/93
TABLE OF CONTENTS
Page
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1. CERTAIN DEFINITIONS.........................................................1
2. LEASE OF PREMISES...........................................................2
3. TERM........................................................................3
4. POSSESSION..................................................................3
5. RENTAL PAYMENTS.............................................................3
6. BASE RENTAL.................................................................4
7. RENT ESCALATION.............................................................5
8. ADDITIONAL RENTAL...........................................................6
9. OPERATING EXPENSES..........................................................8
10. TENANT TAXES..............................................................13
11. PAYMENTS..................................................................14
12. LATE CHARGES..............................................................14
13. USE RULES.................................................................14
14. ALTERATIONS...............................................................14
15. REPAIRS AND MAINTENANCE...................................................15
16. LANDLORD'S RIGHT OF ENTRY.................................................17
17. INSURANCE.................................................................18
18. WAIVER OF SUBROGATION.....................................................19
19. DEFAULT...................................................................19
20. WAIVER OF BREACH..........................................................22
21. ASSIGNMENT AND SUBLETTING.................................................22
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22. DESTRUCTION...............................................................24
23. LANDLORD'S LIEN...........................................................25
24. SERVICES BY LANDLORD......................................................25
25. ATTORNEYS' FEES AND HOMESTEAD.............................................25
26. TIME......................................................................25
27. SUBORDINATION AND ATTORNMENT..............................................25
28. ESTOPPEL CERTIFICATES.....................................................27
29. NO ESTATE.................................................................28
30. CUMULATIVE RIGHTS.........................................................28
31. HOLDING OVER..............................................................28
32. SURRENDER OF PREMISES.....................................................29
33. NOTICES...................................................................29
34. DAMAGE OR THEFT OF PERSONAL PROPERTY......................................30
35. EMINENT DOMAIN............................................................30
36. PARTIES...................................................................31
37. INDEMNITIES...............................................................32
38. Intentionally Deleted.....................................................32
39. FORCE MAJEURE.............................................................32
40. LANDLORD'S LIABILITY......................................................33
41. LANDLORD'S COVENANT OF QUIET ENJOYMENT....................................34
42. SECURITY DEPOSITS.........................................................34
43. HAZARDOUS SUBSTANCES......................................................34
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44. SUBMISSION OF LEASE.......................................................36
45. SEVERABILITY..............................................................36
46. ENTIRE AGREEMENT..........................................................36
47. HEADINGS..................................................................36
48. BROKER....................................................................36
49. GOVERNING LAW.............................................................37
50. SPECIAL STIPULATIONS......................................................37
51. AUTHORITY.................................................................37
52. JOINT AND SEVERAL LIABILITY...............................................37
Rules and Regulations
Exhibit "A" - Legal Description
Exhibit "B" - Floor Plan
Exhibit "B" - Initial Demised Premises Basement Level (Crosshatched)
Exhibit "B" - Initial Demised Premises 2nd Floor (Crosshatched)
Exhibit "B" - Initial Demised Premises 3rd Floor (Crosshatched)
Exhibit "B" - Initial Demised Premises 5th Floor (Crosshatched)
Exhibit "B-1" - 4th Floor South Half - First Expansion Space (Crosshatched)
Exhibit "B-2" - 4th Floor North Half - Second Expansion Space (Crosshatched)
Exhibit "B-3" - 1st Floor - Third Expansion Space (Crosshatched)
Exhibit "C" - Supplemental Notice
Exhibit "D" - Construction Work
Exhibit "D-1" - Landlord's Construction
Exhibit "D-2" - Tenant's Construction
Exhibit "E" - Building Standard Services
Exhibit "F" - Intentionally Omitted
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Exhibit "G" - Special Stipulations
Exhibit "H" - Xxxxx Letter Regarding Rentable Area
Exhibit "I" - Operating Expense Schedule
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LEASE AGREEMENT
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THIS LEASE AGREEMENT ("Lease"), is made and entered into this 8 day of
JUNE, 1993, by and between Landlord and Tenant.
W I T N E S S E T H:
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1. CERTAIN DEFINITIONS. For purposes of this Lease, the following terms
shall have the meanings hereinafter ascribed thereto:
(a) Landlord: COUSINS PROPERTIES INCORPORATED, a Georgia corporation
(b) Landlord's Address:
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Attn: X. Xxxxxxxxxxxx
(c) Tenant: THE SYSTEM WORKS, INC.
(d) Tenant's Address:
Building 11
0000 Xxxxxx Xxxxx Xx.
Xxxxxxxx, Xxxxxxx 00000
provided, however, from and after the date upon which Tenant
takes possession and occupies any portion of the Demised Premises
for the conduct of Tenant's business, Tenant's Address shall be:
Xxxxx 000
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
(e) Building Address:
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
(f) Suite Number: 500
(g) Rentable Floor Area of Demised Premises:
63,688 square feet, which amount is conclusively agreed by the
parties hereto to be correct.
(h) Rentable Floor Area of Building:
105,654 square feet, which amount is conclusively agreed by the
parties hereto to be correct.
(i) Lease Term: 120 months.
(j) Base Rental Rate: $6.00 per square foot of Rentable Floor Area
of Demised Premises per year, subject to adjustments as set forth in
Article 7 below.
(k) Rental Commencement Date: The earlier of (x) thirty (30) days
after Landlord substantially completes (as defined in EXHIBIT "D-1") the
improvements to be constructed by Landlord pursuant to EXHIBIT "D-1"
hereof, but such date shall be accelerated for each day of Tenant Delay
(as defined in EXHIBIT "D-1"), but such date shall not occur earlier
than December 31, 1993 or (y) the date upon which any of Tenant's
personnel occupies any portion of the Demised Premises for the conduct
of Tenant's business, provided, however, that moving in, installing
equipment and furnishings and other preparation of the Demised Premises
for occupancy shall not be deemed to constitute conduct of Tenant's
business. Landlord and Tenant will both use good faith efforts to have
the Building ready for Tenant occupancy by November 1, 1993.
(l) Construction Allowance: $286,596.00
(m) Security Deposits:
(i) $71,304.91 (Article 42[a])
(ii) $ None (Article 42[b])
(n) Broker(s): Cousins Real Estate Corporation and Xxxxxxx
Management Services, Inc., dba The Xxxxxxx Company.
2. LEASE OF PREMISES. Landlord, in consideration of the covenants and
agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant does
hereby rent and lease from Landlord, certain premises (the "Demised Premises")
in the building (hereinafter referred to as "Building") located on that certain
tract of land (the "Land") more particularly described on EXHIBIT "A" attached
hereto and by this reference made a part hereof, which Demised Premises are
crosshatched on the floor plan attached hereto as EXHIBIT "B" and by this
reference made a part hereof, with no easement for light, view or
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air included in the Demised Premises or being granted hereunder. The "Project"
is comprised of the Building, the Land, the Building's parking facilities, any
walkways, covered walkways, tunnels or other means of access to the Building and
the Building's parking facilities, all common areas, including any lobbies or
plazas, and any other improvements or landscaping on the Land. The Project is
located in the development known as "Wildwood Office Park". The Demised
Premises shall include the appurtenant right to use, in common with other
tenants of the Building, the second floor general building lobby and entrance,
Building stairs, first floor patio (but only during the Sole Tenancy Period),
elevators, the Building's parking facilities and other areas of the Building
designed by Landlord as "common areas" from time to time (sometimes herein
referred to as "common areas"). All windows and outside walls of the Building
and any space in the Demised Premises used for shafts, sinks, pipes, conduits,
ducts, telephone ducts and equipment, electric or other utilities or other
similar Building facilities, and the use thereof and access thereto through the
Demised Premises for the purposes of operation, maintenance, reasonable
inspection, display and repairs, as expressly permitted hereunder, are reserved
to Landlord.
3. TERM. The term of this Lease ("Lease Term") shall commence on the date
first hereinabove set forth, and, unless sooner terminated as provided in this
Lease, shall end on the expiration of the period designated in Article 1(i)
above, which period shall commence on the Rental Commencement Date, unless the
Rental Commencement Date shall be other than the first day of a calendar month,
in which event such period shall commence on the first day of the calendar month
following the month in which the Rental Commencement Date occurs. Promptly
after the Rental Commencement Date Landlord shall send to Tenant a Supplemental
Notice in the form of EXHIBIT "C" attached hereto and by this reference made a
part hereof, specifying the Rental Commencement Date, the date of expiration of
the Lease Term in accordance with Article 1(i) above and certain other matters
as therein set forth.
4. POSSESSION. The obligations of Landlord and Tenant with respect to
the initial leasehold improvements to the Demised Premises are set forth in
EXHIBIT "D" attached hereto and by this reference made a part hereof. Taking of
possession by Tenant shall be deemed conclusively to establish that Landlord's
obligations set forth in EXHIBIT "D" with respect to the Demised Premises have
been completed in accordance with the requirements of EXHIBIT "D" excluding
latent defects and that the Demised Premises, to the extent of Landlord's
obligations set forth in EXHIBIT "D" with respect thereto, are in good and
satisfactory condition, excluding latent defects.
5. RENTAL PAYMENTS.
(a) Commencing on the Rental Commencement Date, and continuing
thereafter throughout the Lease Term, Tenant hereby agrees to pay all Rent
due and payable under this Lease. As used in this Lease, the term "Rent"
shall mean the Base Rental, Tenant's Forecast Additional Rental, Tenant's
Additional Rental, and any other amounts that Tenant assumes or agrees to
pay under the provisions of this Lease that are owed to Landlord, including
without limitation any and all other sums that may become due by reason of
any default of Tenant or failure on Tenant's part to comply with the
agreements, terms, covenants and
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conditions of this Lease to be performed by Tenant. Base Rental together
with Tenant's Forecast Additional Rental shall be due and payable in twelve
(12) equal installments on the first day of each calendar month, commencing
on the Rental Commencement Date and continuing thereafter throughout the
Lease Term and any extensions or renewals thereof, and Tenant hereby agrees
to pay such Rent to Landlord at Landlord's address as provided herein (or
such other address as may be designated by Landlord from time to time)
monthly in advance. Tenant shall pay all Rent and other sums of money as
shall become due from and payable by Tenant to Landlord under this Lease at
the times and in the manner provided in this Lease, without demand, set-off
or counterclaim, except as otherwise provided herein. If for any reason
services to at least 10% of the Demised Premises, which are provided by,
through or under Landlord are interrupted other than as a result of the
actions of Tenant or its employees, contractors, agents and invitees, such
interruption of services is of a nature that it materially interferes with
Tenant's use, occupancy and enjoyment of the Demised Premises or the
portion thereof, as applicable, and the provision of such service (and the
interruption thereof) is within the reasonable control of Landlord, then if
such interruption lasts in excess of eight (8) consecutive business days
after receipt by Landlord of written notice from Tenant, Tenant may xxxxx
payments of its Rent for the portion of the Demised Premises in question
after said eighth (8th) consecutive business day until such service is once
again provided to the portion of the Demised Premises in question at a
level which does not materially interfere with Tenant's use, occupancy and
enjoyment of the portion of the Demised Premises in question.
(b) If the Rental Commencement Date is other than the first day of a
calendar month or if this Lease terminates on other than the last day of a
calendar month, then the installments of Base Rental and Tenant's Forecast
Additional Rental for such month or months shall be prorated on a daily
basis and the installment or installments so prorated shall be paid in
advance. Also, if the Rental Commencement Date occurs during a calendar
year, or if this Lease expires or is terminated during a calendar year,
Tenant's Additional Rental shall be determined by reference to Operating
Expense's for said calendar year multiplied by a fraction, the numerator of
which shall be the number of days of the Lease Term during the said
calendar year, and the denominator of which shall be 365, and, in the case
of the termination year the calculation described in Article 8 hereof shall
be made as soon as possible after the expiration or termination of this
Lease, Landlord and Tenant hereby agreeing that the provisions relating to
said calculation shall survive the expiration or termination of this Lease.
6. BASE RENTAL. Subject to adjustments in accordance with Article 7
below, from and after the Rental Commencement Date Tenant shall pay to Landlord
a base annual rental (herein called "Base Rental") equal to the Base Rental Rate
set forth in Article 1(j) above multiplied by the Rentable Floor Area of Demised
Premises set forth in Article 1(g) above.
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7. RENT ESCALATION.
(a) As used in this Article 7, the term "Lease Year" shall mean the
twelve month period commencing on the Rental Commencement Date, or, if the
Rental Commencement Date is not on the first day of a calendar month,
commencing on the first day of the first calendar month following the
Rental Commencement Date, and each successive twelve month period
thereafter during the Lease Term. The term "Subsequent Year" shall mean
each Lease Year of the Lease Term following the first Lease Year. The term
"Prior Year" shall mean the Lease Year prior to each Subsequent Year. The
term "Index" shall mean the Consumer Price Index for all Urban Consumers
(U.S. City Average; Base 1982-84=100), published by the Bureau of Labor
Statistics of the United States Department of Labor. The term "Base Month"
shall mean January, 1990. The term "Comparison Month" shall mean the
calendar month which is four months prior to the first full month of each
Subsequent Year in question.
(b) If the Index for the Comparison Month for any Subsequent Year is
greater than the Index for the Base Month, then the Base Rental Rate for
such Subsequent Year shall be increased to an amount equal to the product
of the Base Rental Rate for the first Lease Year (exclusive of any
concessions) as set forth in Article 1(j) above, multiplied by a fraction,
the numerator of which is the Index for the Comparison Month and the
denominator of which is the Index for the Base Month. Notwithstanding the
foregoing, in no event shall the Base Rental Rate for a Subsequent Year be
less than the Base Rental Rate applicable to the Prior Year and in no event
shall the Base Rental Rate for a Subsequent Year (subject to the provisions
of subparagraph (d) of this Article 7) be greater than the following
amounts for the Lease Years shown:
Second Lease Year $6.00
Third Lease Year 6.25
Fourth Lease Year 6.50
Fifth Lease Year 6.75
Sixth Lease Year 7.00
Seventh Lease Year 7.25
Eighth Lease Year 7.50
Ninth Lease Year 7.75
Tenth Lease Year 8.00
(c) If the Bureau of Labor Statistics should discontinue the
publication of the Index, or publish the same less frequently, or alter the
same in some manner, then Landlord shall adopt a substitute Index or
substitute procedure which reasonably reflects and monitors consumer
prices.
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(d) The Base Rental Rates, as escalated pursuant to other provisions
of this Article 7, shall be further escalated under the following
circumstances:
(1) If Tenant does not exercise its First Expansion Option (as
defined in Special Stipulation Paragraph 1) in the manner and by the
time provided therein, the Base Rental Rate otherwise provided for in
this Article 7 for Lease Years 3 through 10 shall be increased
automatically, without the need for any action by either party and
without the need for any amendment to this Lease, by $1.00 for each
such Lease Year;
(2) If Tenant exercises the First Expansion Option in the manner
and by the time provided therein, but does not exercise the Second
Expansion Option (as defined in Special Stipulation Paragraph 1) I the
manner and by the time provided therein, the Base Rental Rate
otherwise provided for in this Article 7 for Lease Years 4 through 10
shall be increased automatically, without the need for any action by
either party and without the need for any amendment to this Lease, by
$.75 for each such Lease Year; and
(3) If Tenant exercises the First Expansion Option and the
Second Expansion Option, in the manner and by the times provided
therein, but does not exercise the Third Expansion Option (as defined
in Special Stipulation Paragraph 1) in the manner and by the time
provided therein, the Base Rental Rate otherwise provided for in this
Article 7 for Lease Years 5 through 10 shall be increased
automatically, without the need for any action by either party and
without the need for any amendment to this Lease, by $.50 for each
such Lease Year.
8. ADDITIONAL RENTAL.
(a) For purposes of this Lease, "Tenant's Forecast Additional Rental"
shall mean Landlord's reasonable estimate of Tenant's Additional Rental for
the coming calendar year or portion thereof. If at any time it appears to
Landlord that Tenant's Additional Rental for the current calendar year will
vary from Landlord's estimate by more than five percent (5%), Landlord
shall have the right to revise, by notice to Tenant, its estimate for such
year, and subsequent payments by Tenant for such year shall be based upon
such revised estimate of Tenant's Additional Rental. Failure to make a
revision contemplated by the immediately preceding sentence shall not
prejudice Landlord's right to collect the full amount of Tenant's
Additional Rental. Prior to the Rental Commencement Date and thereafter
prior to the beginning of each calendar year during the Lease Term,
including any extensions thereof, Landlord shall present to Tenant a
statement of Tenant's Forecast Additional Rental for such calendar year;
provided, however, that if such statement is not given prior to the
beginning of any calendar year as aforesaid, Tenant shall continue to pay
during the next ensuing calendar year on the basis of the amount of
Tenant's Forecast Additional Rental payable
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during the calendar year just ended until the month after such statement is
delivered to Tenant.
(b) For purposes of this Lease, "Tenant's Additional Rental" shall
mean for each calendar year the sum of "Demised Premises Additional Rental"
(defined below) plus "Other Additional Rental" (defined below):
(1) "Demised Premises Additional Rental" for each calendar year
shall mean the Operating Expense Amount (defined below) multiplied by
the number of square feet of Rentable Floor Area of Demised Premises.
As used herein, "Operating Expense Amount" shall mean an amount equal
to (x) plus (y), where:
(x) equals the amount of Operating Expenses (as defined
below) for such calendar year divided by the greater of (i) 95%
of the number of square feet of Rentable Floor Area of the
Building, or (ii) the total number of square feet of Rentable
Floor Area occupied in the Building for such calendar year on an
average annualized basis; provided, however, if the amount as
calculated under (i) above, the Operating Expenses actually
incurred with respect to such calendar year shall be adjusted to
reflect the amount of Operating Expenses which would have been
incurred if the Building were 95% occupied throughout such
calendar year; and
(y) equals a management fee contribution equal to $.25 for
each of the years 1993 and 1994, and for each calendar year
thereafter, the prior calendar year's amount multiplied by 1.05.
(2) "Other Additional Rental" for each calendar year is defined
as follows:
(x) During the Sole Tenancy Period (as defined below)
"Other Additional Rental" shall be the positive difference
between Operating Expenses for the entire Project for such period
and the amount of Operating Expenses which are reimbursable by
Tenant to Landlord for such period as Demised Premises Additional
Rental. It is the intent of this Lease that during the Sole
Tenancy Period, Tenant shall bear the economic burden of and
shall reimburse Landlord for all Operating Expenses for the
entire Project. For any period that is not a part of the Sole
Tenancy Period, there shall be no "Other Additional Rental", and
(y) "Sole Tenancy Period" shall be defined as the period
beginning on the Rental Commencement Date and ending on the
earlier of (i) the end of the Lease Term and (ii) the end of the
first Lease Year containing an Expansion Option Exercise Deadline
(as defined in Special Stipulation Paragraph 1) in which Tenant
fails to exercise the available Expansion Option
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(as defined in Special Stipulation Paragraph 1) in the manner and
by the time provided therein.
(c) Within one hundred fifty (150) days after the end of the calendar
year in which the Rental Commencement Date occurs and of each calendar year
thereafter during the Lease Term, Landlord shall provide Tenant a statement
showing the Operating Expenses (including components thereof in reasonable
detail) for said calendar year, and a statement prepared by Landlord
comparing Tenant's Forecast Additional Rental with Tenant's Additional
Rental. In the event Tenant's Forecast Additional Rental exceeds Tenant's
Additional Rental for said calendar year, Landlord shall credit such amount
against Rent next due hereunder or, if the Lease Term has expired or is
about to expire, refund such excess to Tenant if there is not an event of
default on the part of Tenant under this Lease (in the instance of an event
of default such excess shall be held as additional security for Tenant's
performance, may be applied by Landlord to cure any such event of default,
and shall not be refunded until any such event of default is cured). In
the event that the Tenant's Additional Rental exceeds Tenant's Forecast
Additional Rental for said calendar year, Tenant shall pay Landlord, within
thirty (30) days of receipt of the statement, an amount equal to such
difference. The provisions of this Lease concerning the payment of
Tenant's Additional Rental shall survive the expiration or earlier
termination of this Lease.
(d) Landlord's books and records pertaining to the calculation of
Operating Expenses for any calendar year within the Lease Term may be
audited by Tenant or its representatives at Tenant's expense, at any time
within twelve (12) months after the end of each such calendar year;
provided that Tenant shall give Landlord not less than thirty (30) days'
prior written notice of any such audit. If Landlord agrees that Tenant's
audit establishes that Landlord's final statement of Operating Expenses for
the year in question was overstated by more than five percent (5%) (or if a
final, unappealable judgement from a court of competent jurisdiction
establishes that fact), Landlord shall reimburse Tenant, within thirty (30)
days of Tenant's written demand therefor, for the reasonable costs and
expenses of Tenant's audit. If Landlord's calculation of Tenant's
Additional Rental for the audited calendar year was incorrect, then Tenant
shall be entitled to a prompt refund of any overpayment or Tenant shall
promptly pay to Landlord the amount of any underpayment, as the case may be.
9. OPERATING EXPENSES.
(a) For the purposes of this Lease, "Operating Expenses" shall mean
all expenses, costs and disbursements (but not specific costs billed to
specific tenants of the Building) of every kind and nature, computed on the
accrual basis, relating to or incurred or paid in connection with the
ownership, management, operation, repair and maintenance of the Project,
including but not limited to, the following:
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(1) reasonable wages, salaries and other costs of all on-site
and off-site employees engaged either full or part-time in the operation,
management, maintenance or access control of the Project, including taxes,
insurance and benefits relating to such employees, allocated based upon the
time such employees are engaged directly in providing such services;
(2) the reasonable cost of all supplies, tools, equipment and
materials used in the operation, management, maintenance and access control
of the Project;
(3) the cost of all utilities for the Project, including but not
limited to the cost of electricity, gas, water, sewer services and power
for heating, lighting, air conditioning and ventilating;
(4) the cost of all maintenance and service agreements for the
Project and the equipment therein, including but not limited to security
service, garage operators, window cleaning, elevator maintenance, HVAC
maintenance, janitorial service, landscaping maintenance and customary
landscaping replacement;
(5) the reasonable cost of repairs and general maintenance of
the Project, including all costs incurred by Landlord under Article 15
hereof;
(6) amortization (together with reasonable financing charges,
whether or not actually incurred) of the cost of acquisition and/or
installation of capital investment items (including security equipment),
amortized over their respective useful lives, which are installed for the
purpose of reducing operating expenses (but only to the extent of
reasonably expected cost savings), promoting safety (but, during the Sole
Tenancy Period, any costs related to safety within or on the Building will
be included herein only if Tenant has consented to the expenditure, but
Tenant shall have no right to refuse to consent if such expenditure is
necessary in order for Landlord to continue to be able to obtain insurance
at commercially reasonable rates), complying with governmental requirements
imposed or determined to be applicable after the date of this Lease, or
maintaining the first-class nature of the Project;
(7) the cost of casualty, rental loss, liability and other
insurance applicable to the Project and Landlord's personal property used
in connection therewith, including insurance required to be carried by
Landlord under Article 17;
(8) the reasonable cost of trash and garbage removal, vermin
extermination, and snow, ice and debris removal;
(9) the cost of legal and accounting services incurred by
Landlord in connection with the management, maintenance, operation and
repair of the Project, excluding
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the owner's or Landlord's general accounting, such as partnership
statements and tax returns, and excluding services described in Article
9(b)(14) below;
(10) all taxes, assessments and governmental charges, incurred by
Landlord, whether federal, state, county, community improvement district or
municipal and whether they be by taxing districts or authorities presently
taxing the Project or by others subsequently created or otherwise, and any
other taxes and assessments attributable to the Project or its operation
(and the costs of contesting any of the same), including business license
taxes and fees, excluding, however, taxes and assessments imposed on the
personal property of the tenants of the Project, federal and state taxes on
income, death taxes, franchise taxes, and any taxes (other than business
license taxes and fees) imposed or measured on or by the income of Landlord
from the operation of the Project; provided, however, that if at any time
during the Lease Term, the present method of taxation or assessment shall
be so changed that the whole or any part of the taxes, assessments, levies,
impositions or charges now levied, assessed or imposed on real estate and
the improvements thereon shall be discontinued and as a substitute
therefor, or in lieu of or in addition thereto, taxes, assessments, levies,
impositions or charges shall be levied, assessed and/or imposed wholly or
partially as a capital levy or otherwise on the rents received from the
Project or the rents reserved herein or any part thereof, then such
substitute or additional taxes, assessments, levies, impositions or
charges, to the extent so levied, assessed or imposed, shall be deemed to
be included within the Operating Expenses to the extent that such
substitute or additional tax would be payable if the Project were the only
property of the Landlord subject to such tax; and it is agreed that Tenant
will be responsible for ad valorem taxes on its personal property and on
the value of the leasehold improvements in the Demised Premises to the
extent that the same relate to improvements made after the occupancy of any
portion of the Demised Premises, if said taxes are based upon an assessment
which includes the cost of such leasehold improvements (and if the taxing
authorities do not separately assess Tenant's leasehold improvements,
Landlord may make an appropriate allocation of the ad valorem taxes
allocated to the Project to give effect to this sentence). If Landlord
receives a refund of any portion of taxes that were included in the
Operating Costs paid by Tenant, Landlord shall reimburse Tenant its prorata
share of the refunded taxes, less any expenses that Landlord reasonably
incurred to obtain the refund;
(11) the reasonable cost of operating the management office for
the Project and an equitable portion of the cost of operating the
management office for Wildwood Office Park, including in each case the cost
of office supplies, postage, telephone expenses, maintenance and repair of
office equipment, non-capital investment equipment, amortization (together
with reasonable financing charges) of the cost of capital investment
equipment, and rent; and
(12) the pro rata share applicable to the Project of the sum of
(i) the costs of operation, maintenance, repair and replacement of the
landscaping and irrigation systems now or hereafter located along Windy
Ridge Parkway, Xxxxx Xxxx Road, Wildwood
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Parkway, Wildwood Plaza, the right-of-way areas of Powers Ferry Road
adjoining Wildwood Office Park, and all future roadways, whether public or
private, constructed in Wildwood Office Park, together with the landscaped
median strips and shoulders of such roadways (but not including the
landscaping and irrigation system located on the shoulder of any roadway
contiguous to a site upon which construction of improvements has commenced)
and any and all light systems located on or in any rights-of-way for
private roads; (ii) ad valorem taxes on any private roadways now or
hereafter located within Wildwood Office Park and on any medians adjacent
to public roads if such medians are not included in public road
rights-of-way; (iii) the costs of ownership, operation, maintenance, repair
and replacement of office park signage for Wildwood Office Park (excluding
leasing, building and office park monumental signage) and any underground
sanitary sewer lines, storm water drainage lines, electric lines, gas
lines, water lines, telephone lines and communication lines located across,
through and under any public or private roadways now or hereafter located
within Wildwood Office Park, except for any such utility facilities serving
solely another project within Wildwood Office Park; (iv) the costs of
ownership, operation, maintenance, repair and replacement of any private
transportation system and equipment from time to time provided or made
available to the developed portions of Wildwood Office Park, including but
not limited to ad valorem taxes on personal property or equipment,
electricity, fuel, painting and cleaning costs; (v) the costs and expenses
of ownership and operation of any security patrols or services, if any,
from time to time provided to Wildwood Office Park in general, but
excluding any such security patrols or services provided solely to another
project within Wildwood Office Park; and (vi) such other costs and expenses
incurred by Landlord as "Owner" of the Project under and pursuant to that
certain Master Declaration of Covenants and Cross-Easements for Wildwood
Office Park dated as of January 23, 1991, recorded in Deed Book 5992, page
430, Xxxx County, Georgia records, as modified, amended or supplemented
from time to time (the "Master Declaration"). The share of the foregoing
costs which are applicable to the Project shall be determined in accordance
with the Master Declaration.
(b) For purposes of this Lease, and notwithstanding anything in any
other provision of this Lease to the contrary, "Operating Expenses" shall
not include the following:
(1) the cost of any special work or service performed for any
tenant (including Tenant) at such tenant's cost;
(2) the cost of installing, operating and maintaining any
specialty service, such as an observatory, broadcasting facility, luncheon
club, restaurant, cafeteria, retail store, sundry shop, newsstand, or
concession, but only to the extent such costs exceed those which would
normally be expected to be incurred had such space been general office
space;
(3) the cost of correcting defects in construction;
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(4) compensation paid to officers and executives of Landlord
(but it is understood that the office park manager, the on-site building
manager and other on-site employees below the grade of building manager may
carry a title such as vice president and the salaries and related benefits
of these officers/employees of Landlord would be allowable Operating
Expenses under Article 9[a][1] above);
(5) the cost of any items for which Landlord is reimbursed by
insurance, condemnation or otherwise, except for costs reimbursed pursuant
to provisions similar to Articles 8 and 9 hereof;
(6) the cost of any additions, changes, replacements and other
items which are made in order to prepare for a new tenant's occupancy or
the renewal or expansion of an existing tenant;
(7) the cost of repairs incurred by reason of fire or other
casualty other than commercially reasonable deductible amounts which may
be included in Operating Expenses;
(8) insurance premiums to the extent Landlord may be directly
reimbursed therefor, except for premiums reimbursed pursuant to provisions
similar to Articles 8 and 9 hereof;
(9) interest on debt or amortization payments on any mortgage or
deed to secure debt (except to the extent specifically permitted by Article
9[a]) and rental under any ground lease or other underlying lease;
(10) any real estate brokerage commissions or other costs
incurred in procuring tenants or any fee in lieu of such commission;
(11) any advertising expenses incurred in connection with the
marketing of any rentable space;
(12) rental payments for base building equipment such as HVAC
equipment and elevators;
(13) any expenses for repairs or maintenance which are covered by
warranties and service contracts, to the extent such maintenance and
repairs are made at no cost to Landlord;
(14) legal expenses arising out of the construction of the
improvements on the Land or the enforcement of the provisions of any lease
affecting the Land or Building, including without limitation this Lease;
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(15) management fees (Tenant's obligation for a management fee
contribution is set forth in Article 8[b][1][y] above);
(16) the purchase price of capital items, provided, however that
the provisions of Articles 9(a)(6), 9(a)(11) and 9(a)(12) shall not be
affected by the exclusion;
(17) depreciation, except as expressly allowed in Article
9(a)(6), 9(a)(11) and 9(a)(12);
(18) legal, accounting and other professional fees incurred by
Landlord arising from a sale or financing of the Building or the Project;
(19) the cost of membership in any political organization;
(20) the cost of any political or campaign contributions;
(21) Landlord's cost of electricity or other services sold to
tenants for which Landlord is reimbursed as a charge over the base rent and
additional rent payable under the lease with that tenant;
(22) costs incurred due to Landlord's failure to timely comply
with or pay amounts due with respect to a contractual, legal or
governmental requirement, provided, however, this exclusion shall not be
applicable if Landlord has filed a timely good faith protest or dispute of
the charge in question or if the failure results from Landlord's good faith
interpretation of the applicable contractual, legal or governmental
requirement; and
(23) costs or fees paid to entities or individuals related to or
affiliated with Landlord to the extent such costs or fees exceed the fair
market value for the services rendered by that entity or individual.
(c) Landlord represents that EXHIBIT "I" sets forth its good faith
estimates of what the Operating Expenses would be if calendar year 1993
were the first Lease Year, amounts having been estimated by Landlord for
each category of Operating Expense set forth in Article 9(a). Tenant
acknowledges that it has been offered an opportunity to audit prior
expenses of the Project and, accordingly, has been afforded an opportunity
to develop independent conclusions as to the estimated level of operating
expenses.
10. TENANT TAXES. Tenant shall pay promptly when due all taxes directly
or indirectly imposed or assessed upon Tenant's gross sales, business
operations, machinery, equipment, trade fixtures and other personal property or
assets, whether such taxes are assessed against Tenant, Landlord or the
Building. In the event that such taxes are imposed or assessed against Landlord
or
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xxx Xxxxxxxx, Xxxxxxxx shall furnish Tenant with all applicable tax bills,
public charges and other assessments or impositions and Tenant shall forthwith
pay the same either directly to the taxing authority or, at Landlord's option,
to Landlord.
11. PAYMENTS. All payments of Rent and other payments to be made to
Landlord shall be made on a timely basis and shall be payable to Landlord or as
Landlord may otherwise designate. All such payments shall be mailed or
delivered to Landlord's Address designated in Article 1(b) above or at such
other place as Landlord may designate from time to time in writing. If mailed,
all payments shall be mailed in sufficient time and with adequate postage
thereon to be received in Landlord's account by no later than the due date for
such payment. Tenant agrees to pay to Landlord Fifty Dollars ($50.00) for each
check presented to Landlord in payment of any obligation of Tenant which is not
paid by the bank on which it is drawn, together with interest from and after the
due date for such payment at the rate of eighteen percent (18%) per annum on the
amount due.
12. LATE CHARGES. Any Rent or other amounts payable to Landlord under
this Lease, if not paid by the fifth day of the month for which such Rent is
due, or by the due date specified on any invoices from Landlord for any other
amounts payable hereunder, shall incur a late charge of Fifty Dollars ($50.00)
for Landlord's administrative expense in processing such delinquent payment and
in addition thereto shall bear interest at the rate of eighteen percent (18%)
per annum from and after the due date for such payment. In no event shall the
rate of interest payable on any late payment exceed the legal limits for such
interest enforceable under applicable law.
13. USE RULES. The Demised Premises shall be used for general offices,
executive offices, sales offices, accounting offices, training center, computer
and computer software development center, computer operations center, kitchen
facilities related to each of the foregoing uses and all functions and purposes
now or hereafter incidental to the foregoing uses and the operation of a full
service computer software firm and no other purposes and in accordance with all
applicable laws, ordinances, rules and regulations of governmental authorities
and the Rules and Regulations attached hereto and made a part hereof. Landlord
warrants that applicable laws, ordinances, regulations, and restrictive
covenants permit the Demised Premises to be used for general office and
executive office uses and purposes. Tenant covenants and agrees to abide by the
Rules and Regulations in all respects as now set forth and attached hereto or as
hereafter promulgated by Landlord. Landlord shall have the right at all times
during the Lease Term to publish and promulgate and thereafter enforce such
rules and regulations or changes in the existing Rules and Regulations as it may
reasonably deem necessary in its sole discretion to protect the tenantability,
safety, operation, and welfare of the Demised Premises, the Project and Wildwood
Office Park. Landlord shall apply and enforce the Rules and Regulations in a
nondiscriminatory fashion.
14. ALTERATIONS. Except for any initial improvement of the Demised
Premises pursuant to EXHIBIT "D", which shall be governed by the provisions of
said EXHIBIT "D", Tenant shall not make, suffer or permit to be made any
alterations, additions or improvements to or of the Demised Premises or any part
thereof, or attach any fixtures or equipment thereto, without first obtaining
Landlord's written consent, which consent shall not be unreasonably withheld,
conditioned or
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delayed by Landlord. Any such alterations, additions or improvements to the
Demised Premises consented to by Landlord shall be made by Landlord or under
Landlord's supervision for Tenant's account and Tenant shall reimburse Landlord
for all costs thereof (including construction coordination fees as set forth in
EXHIBIT "D-1" if Landlord is coordinating the work or as set forth in EXHIBIT
"D-2" if Tenant is coordinating the work), as Rent, within ten (10) days after
receipt of a statement. This provision shall not apply to basic, non-material
work within the Demised Premises, such as, by way of illustration but not
limitation, picture hanging, furniture installation and the rearranging of
offices within the Demised Premises, and Tenant may cause such tasks to be
performed without the prior consent of Landlord. All such alterations,
additions and improvements shall become Landlord's property at the expiration or
earlier termination of the Lease Term and shall remain on the Demised Premises
without compensation to Tenant unless Landlord elects by notice to Tenant to
have Tenant remove such alterations, additions and improvements, in which event,
notwithstanding any contrary provisions respecting such alterations, additions
and improvements contained in Article 32 hereof, Tenant shall promptly restore,
at its sole cost and expense, the Demised Premises to its condition prior to the
installation of such alterations, additions and improvements excepting only (i)
reasonable wear and tear and (ii) casualty damage and condemnation.
15. REPAIRS AND MAINTENANCE.
(a) Landlord shall maintain in good order and repair, subject to
normal wear and tear and subject to casualty and condemnation, the Building
(excluding the Demised Premises and other portions of the Building leased
to other tenants), the Building parking facilities, the public areas and
the landscaped areas. Such maintenance shall be in a manner comparable to
other buildings in Wildwood Office Park and shall include, without
limitation, the "Maintenance Services", as defined below. Notwithstanding
the foregoing obligation, the cost of any repairs or maintenance to the
foregoing necessitated by the intentional acts or negligence of Tenant or
its agents, contractors, employees, invitees, licensees, tenants or
assigns, shall be borne solely by Tenant and shall be deemed Rent hereunder
and shall be reimbursed by Tenant to Landlord within fifteen (15) days
after demand. Landlord shall not be required to make any repairs or
improvements to the Demised Premises except structural repairs necessary
for safety and tenantability and material repairs necessitated by damage
caused by Landlord, its agents or employees acting within the scope of
their agency or employment. The term Maintenance Services shall include
(i) maintaining the exterior walls, exterior windows, exterior doors and
roof of the Building, common areas, public corridors, stairs, elevators,
storage rooms, restrooms, the heating, ventilating and air conditioning
systems, electrical and plumbing systems of the Building, the walks, paving
and landscaping surrounding the Building, (ii) grounds care, including, but
not limited to, the sweeping of walks and parking areas and maintenance of
landscaping in an attractive manner, illumination, snow removal, deicing
and lawn care, all consistent with the grounds care of Wildwood Office
Park, (iii) general maintenance, including supervision, inspections and
management functions as typically carried out in Wildwood Office Park, and
(iv) extermination and pest control services for the Building (and common
areas herein) and
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parking deck for the Building when necessary. Notwithstanding any other
term of this Lease, if during the Sole Tenancy Period Landlord has
requested that Tenant consent to a capital investment intended to promote
safety and, pursuant to the terms of Article 9(a)(6) Tenant has not
consented to the expenditure ("Unapproved Safety Expenditure"), Landlord
shall have no obligation to make such expenditure. Furthermore, Tenant for
itself and its employees hereby waives and releases Landlord from and
agrees to hold Landlord harmless against any and all liability, loss, cost,
damage or expense, including without limitation, court costs and reasonable
attorneys fees, incurred or suffered by Tenant or its employees arising out
of or resulting from the failure to make an Unapproved Safety Expenditure
or to undertake actions that would have been made possible by such
expenditure.
(b) Tenant covenants and agrees that it will take good care of the
Demised Premises and all alterations, additions and improvements thereto
and will keep and maintain the same in good condition and repair, except
for (i) normal wear and tear and (ii) casualty damage and condemnation.
Tenant shall at once report, in writing, to Landlord any defective or
dangerous condition known to Tenant. To the fullest extent permitted by
law, Tenant hereby waives all rights to make repairs at the expense of
Landlord or in lieu thereof to vacate the Demised Premises as may be
provided by any law, statute or ordinance now or hereafter in effect.
Landlord has no obligation and has made no promise to alter, remodel,
improve, repair, decorate or paint the Demised Premises or any part
thereof, except as specifically and expressly herein set forth.
(c) If Landlord fails to keep or perform any of its obligations under
the Lease with respect to repairs and maintenance of the Demised Premises
or Building required under the Lease to be made by Landlord, if such
failure materially and adversely affects Tenant's ability to use the
Demised Premises for normal business operations; or if Landlord fails to
keep the common areas of the Building and Project in a condition at least
comparable to the upkeep of other first class buildings in the area of the
Building, and if either such failure materially and adversely affects
Tenant's ability to use the Demised Premises for normal business
operations; then, upon the continuance of such failure on Landlord's part
for thirty (30) days after the receipt by Landlord and any mortgagee of
notice from Tenant indicating with specificity the nature of the failure
(or, in the case of any such failure which cannot reasonably be cured
within thirty (30) days, within such additional period, if any, as may be
reasonably required by Landlord to cure such failure with due diligence),
and without waiving or releasing Landlord from any obligation, then (i)
Tenant may undertake to perform such obligation, and all sums actually paid
or incurred by Tenant and all necessary and incidental costs and expenses
(but not costs to improve the Building, Demised Premises or other
facilities beyond rectifying Landlord's failure), including reasonable
attorney's fees and expenses paid to legal counsel, incurred by Tenant in
making such payment or performing such obligation, together with interest
thereon at the prime rate of interest quoted form time to time by Trust
Company Bank, main branch, Atlanta, Georgia, plus one percent (1%) interest
per annum, from the date the payment in question is received by Tenant,
shall be paid by Landlord to Tenant within thirty (30) days after demand,
or (ii) Tenant may pursue
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any other remedies available to Tenant at law or in equity to collect
payment and/or cause Landlord to cure such failure. Notwithstanding
anything to the contrary set forth hereinabove, during periods other than
the Sole Tenancy Period, Tenant shall be entitled to perform any such
obligations of Landlord only within the Demised Premises or in the elevator
lobbies on floors occupied solely by Tenant and Tenant shall not be
entitled to perform such obligations with respect to any portions of the
Building systems or facilities that serve any other tenant's space. Any
contractors employed by Tenant to cure a Landlord failure hereunder shall
be reputable contractors and Tenant upon completion of such work shall
provide appropriate lien waivers to Landlord. In effectuating a cure in
connection with Tenant's self-help or cure rights hereunder, Tenant shall
take precautions that a reasonable building manager would undertake to
avoid unreasonable interference with other tenants in the Building or the
Building systems (such as electrical or mechanical systems).
16. LANDLORD'S RIGHT OF ENTRY. Landlord shall retain duplicate keys to
all doors of the Demised Premises and Landlord and its agents, employees and
independent contractors shall have the right to enter the Demised Premises at
reasonable hours to inspect and examine same, to make repairs, additions,
alterations, and improvements, to exhibit the Demised Premises to mortgagees,
prospective mortgagees, purchasers or tenants, and to inspect the Demised
Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder, all without being liable to Tenant in any manner
whatsoever for any damages arising therefrom; provided, however, that Landlord
shall, except in case of emergency, afford Tenant such prior notification of an
entry into the Demised Premises as shall be reasonably practicable under the
circumstances and shall use all reasonable efforts to avoid causing any
disruption of the Demised Premises. Landlord shall be allowed to take into and
through the Demised Premises any and all materials that may be required to make
such repairs, additions, alterations or improvements. During such time as such
work is being carried on in or about the Demised Premises, the Rent provided
herein shall not xxxxx, and Tenant waives any claim or cause of action against
Landlord for damages by reason of interruption of Tenant's business or loss of
profits therefrom because of the prosecution of any such work or any part
thereof. Notwithstanding any other provisions of this Lease to the contrary,
Tenant shall be permitted to designate not more than 5,000 square feet of the
Demised Premises as safe or confidential areas or locked computer rooms to be
known as "Locked Documentation Rooms", to which Landlord shall have no access,
unless accompanied by Tenant's authorized representatives. Tenant must
designate such spaces as "Locked Documentation Rooms" by written notice to
Landlord, and such status shall only be effective after receipt by Landlord of
such written notice. Landlord, when accompanied by Tenant's representative may
inspect any Locked Documentation Rooms during Tenant's normal business hours
after giving Tenant reasonable prior notice requesting such an inspection. In
emergency where immediate access to such rooms is necessary, Landlord may, after
being unable to locate an employee of Tenant using all reasonable means, gain
access to a Locked Documentation Room by using force. Landlord shall not be
responsible for providing janitorial services with respect to any Locked
Documentation Room. Landlord shall not receive copies of keys, pass cards or
cipher lock combinations to Locked Documentation Rooms.
17. INSURANCE.
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(a) Tenant shall procure at its expense and maintain throughout the
Lease Term a policy or policies of fire and extended coverage insurance
insuring the full replacement cost of its furniture, equipment, supplies,
and other property owned, leased, held or possessed by it and contained in
the Demised Premises, together with the excess value of the improvements to
the Demised Premises over the Construction Allowance, and workmen's
compensation insurance as required by applicable law. Tenant shall also
procure at its expense and maintain throughout the Lease Term a policy or
policies of insurance, insuring Tenant, Landlord and any other person
designated by Landlord, against any and all liability for injury to or
death of a person or persons and for damage to property occasioned by or
arising out of any construction work being done on the Demised Premises, or
arising out of the condition, use, or occupancy of the Demised Premises, or
in any way occasioned by or arising out of the activities of Tenant, its
agents, contractors, employees, guests, or licensees in the Demised
Premises, or other portions of the Building, the Project or Wildwood Office
Park, the limits of such policy or policies to be in combined single limits
for both damage to property and personal injury and in amounts not less
than Three Million Dollars ($3,000,000) for each occurrence, with annual
general aggregate limits of not less than Five Million Dollars
($5,000,000), provided, however, that said $3,000,000 and $5,000,000 limits
shall be adjusted (x) as of the end of the fifth Lease Year by multiplying
said limits by a fraction whose numerator is the Index (as defined in
Article 7) for the last month of the fifth Lease Year and whose denominator
is the Index for December 1993 and (y) as of the end of the tenth Lease
Year by multiplying said limits by a fraction whose numerator is the Index
for the last month of the tenth Lease Year and whose denominator is the
Index for December 1993. Such insurance shall, in addition, extend to any
liability of Tenant arising out of the indemnities provided for in this
Lease. All insurance policies procured and maintained by Tenant pursuant to
this Article 17 shall name Landlord and the building manager (said building
manager at the time of execution of this Lease being the Landlord and
Landlord will notify Tenant in writing of any change in the building
manager) as additional insured, shall be carried with companies licensed to
do business in the State of Georgia reasonably satisfactory to Landlord,
and shall be non-cancelable and not subject to material change except after
twenty (20) days' written notice to Landlord. Copies of policies and duly
executed certificates of insurance with respect thereto, shall be delivered
to Landlord prior to the Rental Commencement Date, and copies of policies
and certificates evidencing renewals of such policies shall be delivered to
Landlord at least twenty (20) days prior to the expiration of each
respective policy term, (but if copies of such policies are not available by
such date, such copies will be submitted as soon as they are available).
Any insurance required by the terms of this Lease to be carried by Tenant
may be under a blanket policy (or policies) covering other properties of
Tenant and/or its related or affiliated business entities, provided that
the policies otherwise comply with the provisions of this Lease and
allocate to Tenant's property at the Demised Premises the specified
coverage, without possibility of reduction or co-insurance by reason of, or
damage to, any other property named therein. If such insurance is
maintained under a blanket policy, Tenant shall procure and deliver to
Landlord a statement from the insurer or general agent of the insurer
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setting forth the coverage maintained, which shall be sufficient to meet
the requirements of this Lease, and the amounts thereof allocated to the
risk intended to be insured hereunder.
(b) Landlord shall procure at its expense and maintain throughout the
Lease Term a policy of fire and extended coverage insurance insuring an
amount equal to the greater of ninety (90%) of the replacement value of the
Building or the amount required by landlord's mortgagee, if any. Landlord
shall also procure at its expense and maintain throughout the Lease Term a
liability insurance policy with respect to the common areas of the
Building, in commercially reasonable amounts and with commercially
reasonable deductibles. All such costs shall be included in Operating
Expenses.
18. WAIVER OF SUBROGATION. Landlord and Tenant shall each have included
in all policies of fire, extended coverage, business interruption and other
insurance respectively obtained by them covering the Demised Premises, the
Building and contents therein, a waiver by the insurer of all right of
subrogation against the other in connection with any loss or damage thereby
insured against. Any additional premium for such waiver shall be paid by the
primary insured. To the full extent permitted by law, Landlord and Tenant each
waives all right of recovery against the other for, and agrees to release the
other from liability for, loss or damage to the extent such loss or damage is
covered by valid and collectible insurance in effect at the time of such loss or
damage or would be covered by the insurance required to be maintained under this
Lease by the party seeking recovery.
19. DEFAULT.
(a) 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
Rent or any other charge or assessment against Tenant pursuant to the terms
hereof within five (5) days after the "Default Date" for such payment, the
"Default Date" being (x) if all payments previously due from Tenant in the
current calendar year, or if all except one or two of such payments, have
been paid by their respective due dates, the Default Date for the payment
in question shall be the date notice is given by Landlord that the payment
has not been received by its due date and (y) in all other cases, the
Default Date shall be the due date of the payment; (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 Rent or any other charge or
assessment payable by Tenant, and (x) shall not cure such failure within
fifteen (15) days after notice thereof to Tenant, or (y) if Tenant notifies
Landlord that said cure will take more than fifteen (15) days and Tenant
provides evidence that it is diligently pursuing said cure, Tenant shall
not cure such failure within a reasonable time, not to exceed sixty (60)
days; (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
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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 forty-five (45) days after
the commencement thereof; (v) a receiver or trustee shall be appointed for
the Demised Premises or for all or substantially all of the assets of Tenant
or of any guarantor of this Lease; (vi) Tenant shall fail to take possession
thereof by the later of (x) July 1, 1994 or (y) the date which is sixty
(60) days after the date the Demised Premises are deemed substantially
completed as defined in EXHIBIT "D-1"; (vii) Tenant shall do or permit to
be done anything which creates a lien upon the Demised Premises or the
Project and such lien is not removed or discharged within fifteen (15) days
after the filing thereof; (viii) Tenant shall fail to return a properly
executed instrument to Landlord in accordance with the provisions of Article
27 hereof within the time period provided for such return following
Landlord's request for same as provided in Article 27 and, further fails to
return such instrument within five (5) business days following Landlord's
second written request therefore; or (ix) Tenant shall fail to return a
properly executed estoppel certificate to Landlord in accordance with the
provisions of Article 28 hereof within the time period provided for such
return following Landlord's request for same as provided in Article 28 and
further fails to return such certificate within five (5) business days
following Landlord's second written request therefore.
(b) Upon the occurrence of any of the aforesaid events of default,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever: (i) terminate this Lease,
in which event Tenant shall immediately surrender the Demised Premises to
Landlord and if Tenant fails to do so, Landlord may without prejudice to any
other remedy which it may have for possession or arrearages in Rent, enter
upon and take possession of the Demised Premises and expel or remove Tenant
and any other person who may be occupying said Demised Premises or any part
thereof, by force, if necessary, without being liable for prosecution or any
claim of damages therefor; Tenant hereby agreeing to pay to Landlord on
demand the amount of all loss and damage which Landlord may suffer by reason
of such termination, whether through inability to relet the Demised Premises
on satisfactory terms or otherwise; (ii) terminate Tenant's right of
possession (but not this Lease) and enter upon and take possession of the
Demised Premises and expel or remove Tenant and any other person who may be
occupying said Demised Premises or any part thereof, by entry, dispossessory
suit or otherwise, without thereby releasing Tenant from any liability
hereunder, without terminating this Lease, and without being liable for
prosecution or any claim of damages therefor and, if Landlord so elects,
make such alterations, redecorations and repairs as, in Landlord's judgment,
may be necessary to relet the Demised Premises, and Landlord may, but shall
be under no obligation to do so, relet the Demised Premises or any portion
thereof in Landlord's or Tenant's name, but for the account of Tenant, for
such term or terms (which may be for a term extending beyond the Lease
Term) and at such rental or rentals and upon such other terms as Landlord
may deem advisable, with or without advertisement, and by private
negotiations, and receive the rent therefor, Tenant hereby agreeing to pay
to Landlord the deficiency, if any, between
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all Rent reserved hereunder and the total rental applicable to the Lease
Term hereof obtained by Landlord re-letting, and Tenant shall be liable for
Landlord's expenses in redecorating and restoring the Demised Premises and
all costs incident to such re-letting, including broker's commissions and
lease assumptions, and in no event shall Tenant be entitled to any rentals
received by Landlord in excess of the amounts due by Tenant hereunder; or
(iii) enter upon the Demised Premises, without being liable for prosecution
or any claim of damages therefor, and do whatever Tenant is obligated to do
under the terms of this Lease; and Tenant agrees to reimburse Landlord on
demand for any reasonable expenses including, without limitation,
reasonable attorneys' fees which Landlord may incur in thus effecting
compliance with Tenant's obligations under this Lease. If this Lease is
terminated by Landlord as a result of the occurrence of an event of
default, Landlord may declare to be due and payable immediately, the
present value (calculated with a discount factor of eight percent [8%]
per annum) of the difference between (x) the entire amount of Rent and
other charges and assessments which in Landlord's reasonable determination
would become due and payable during the remainder of the Lease Term
determined as though this Lease had not been terminated (including, but not
limited to, increases in Rent pursuant to Article 7 hereof), and (y) the
then fair market rental value of the Demised Premises for the remainder of
the Lease Term. Upon the acceleration of such amounts, Tenant agrees to
pay the same at once, together with all Rent and other charges and
assessments theretofore due, at Landlord's address as provided herein, it
being agreed that such payment shall not constitute a penalty or forfeiture
but shall constitute liquidated damages for Tenant's failure to comply with
the terms and provisions of this Lease (Landlord and Tenant agreeing that
Landlord's actual damages in such event are impossible to ascertain and
that the amount set forth above is a reasonable estimate thereof).
(c) 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 Rent or other charges
and assessments payable by Tenant and due to Landlord hereunder or of any
damages accruing to Landlord by reason of violation of any of the terms,
covenants, warranties and provisions herein contained. No reentry or
taking possession of the Demised Premises by Landlord or any other action
taken by or on behalf of Landlord shall be construed to be an acceptance of
a surrender of this Lease or an election by Landlord to terminate this
Lease unless written notice of such intention is given to Tenant.
Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default. In determining the amount of loss or
damage which Landlord may suffer by reason of termination of this Lease or
the deficiency arising by reason of any reletting of the Demised Premises
by Landlord as above provided, allowance shall be made for the expense of
repossession. Tenant agrees to pay to Landlord all costs and expenses
incurred by Landlord in the enforcement of this Lease, including, without
limitation, the fees of Landlord's attorneys as provided in Article 25
hereof.
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20. WAIVER OF BREACH. No waiver of any breach of the covenants,
warranties, agreements, provisions, or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition or of any subsequent breach thereof, and if any breach shall occur and
afterwards be compromised, settled or adjusted, this Lease shall continue in
full force and effect as if no breach had occurred.
21. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior
written consent of Landlord, assign this Lease or any interest herein or in the
Demised Premises, or mortgage, pledge, encumber, hypothecate or otherwise
transfer or sublet the Demised Premises or any part thereof or permit the use of
the Demised Premises by any party other than Tenant. Consent to one or more
such transfers or subleases shall not destroy or waive this provision, and all
subsequent transfers and subleases shall likewise be made only upon obtaining
the prior written consent of Landlord. Without limiting the foregoing
prohibition, in no event shall Tenant assign this Lease or any interest herein,
whether directly, indirectly or by operation of law, or sublet the Demised
Premises or any part thereof or permit the use of the Demised Premises or any
part thereof by any party if such proposed assignment, subletting or use would
contravene any restrictive covenant (including any exclusive use) granted to any
other tenant of the Building. Sublessees or transferees of the Demised Premises
for the balance of the Lease Term shall become directly liable to Landlord for
all obligations of Tenant hereunder, without relieving Tenant (or any guarantor
of Tenant's obligations hereunder) of any liability therefor, and Tenant shall
remain obligated for all liability to Landlord arising under this Lease during
the entire remaining Lease Term including any extensions thereof, whether or not
authorized herein. If Tenant is a partnership, a withdrawal or change, whether
voluntary, involuntary or by operation of law, of partners owning a controlling
interest in the Tenant shall be deemed a voluntary assignment of this Lease and
subject to the foregoing provisions. If Tenant is a corporation, any
dissolution, merger, consolidation or other reorganization of Tenant, or the
sale or transfer of a controlling interest in the capital stock of Tenant, shall
be deemed a voluntary assignment of this Lease and subject to the foregoing
provisions. Landlord may, as a prior condition to considering any request for
consent to an assignment or sublease, require Tenant to obtain and submit
current financial statements of any proposed subtenant or assignee. In the
event Landlord consents to an assignment or sublease, Tenant shall pay to
Landlord a reasonable fee to cover Landlord's accounting costs plus any legal
fees incurred by Landlord as a result of the assignment or sublease. Landlord
may require an additional security deposit from the assignee or subtenant as a
condition of its consent. Any consideration, in excess of the Rent and other
charges and sums due and payable by Tenant under this Lease, paid to Tenant by
any assignee of this Lease for its assignment, or by any sublessee under or in
connection with its sublease, or otherwise paid to Tenant by another party for
use and occupancy of the Demised Premises or any portion thereof, shall be
promptly remitted by Tenant to Landlord as additional rent hereunder and Tenant
shall have no right or claim thereto as against Landlord. No assignment of this
Lease consented to by Landlord shall be effective unless and until Landlord
shall receive an original assignment and assumption agreement, in form and
substance satisfactory to Landlord, signed by Tenant and Tenant's proposed
assignee, whereby the assignee assumes due performance of this Lease to be done
and performed for the balance of the then remaining Lease Term of this Lease.
No subletting of the Demised Premises, or any part thereof, shall be effective
unless and until there
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shall have been delivered to Landlord an agreement, in form and substance
satisfactory to Landlord, signed by Tenant and the proposed sublessee, whereby
the sublessee acknowledges the right of Landlord to continue or terminate any
sublease, in Landlord's sole discretion, upon termination of this Lease, and
such sublessee agrees to recognize and attorn to Landlord in the event that
Landlord elects under such circumstances to continue such sublease.
Notwithstanding any provision to the contrary contained in Article 21 of
this Lease Agreement Landlord's consent under Article 21 to an assignment or
subletting of this Lease Agreement or any interest herein or in the Demised
Premises shall not be unreasonably withheld or unduly delayed. Landlord and
Tenant agree that Landlord may withhold its consent to any proposed assignment
of this Lease Agreement or subletting of all or any portion of the Demised
Premises, and such withholding of consent by Landlord will not be deemed to be
unreasonable, if the proposed assignee or sublessee is not a reputable business
entity or individual, is a governmental or quasi-governmental entity or is a
party who would (or whose use would) detract from the character of the Building
as a first-class office building, such as, without limitation, a dental, medical
or chiropractic office. Landlord may reasonably withhold consent to an
assignment or subletting for reasons other than those enumerated immediately
above. Sublessee or transferees of the Demised Premises for the balance of the
Lease Term shall become directly liable to Landlord for all obligations of
Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's
obligations hereunder) of any liability therefor, and Tenant shall remain
obligated for all liability to Landlord arising under this Lease during the
entire remaining Lease Term including any extensions thereof, whether or not
authorized herein.
Notwithstanding any provision to the contrary in Article 21 of this Lease,
Tenant may sublease any or all of the Demised Premises to an Affiliate (as
defined below) without the consent of Landlord. The term "Affiliate" shall mean
an entity in which Tenant owns a controlling interest or in which the
controlling interest is owned by a party owning a controlling interest in
Tenant. Any such sublease shall only be effective upon Tenant providing
evidence reasonably satisfactory to Landlord that demonstrates that such
sublessee is an Affiliate. Sublessees of the Demised Premises for the balance
of the Lease Term shall become directly liable to Landlord for all obligations
of Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's
obligations hereunder) of any liability therefor, and Tenant shall remain
obligated for all liability to Landlord arising under this Lease during the
entire remaining Lease Term including any extensions thereof, whether or not
authorized herein.
Notwithstanding any provision to the contrary contained in Article 21 of
this Lease, a merger of Tenant with another corporation or the sale or transfer
of a controlling interest in the capital stock of Tenant shall not be deemed to
be an assignment of this Lease which requires the consent of Landlord if Tenant
establishes to the reasonable satisfaction of Landlord that the surviving entity
will have a net worth and earning potential at least equivalent to that of
Tenant.
22. DESTRUCTION.
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(a) If the Demised Premises are damaged by fire or other casualty,
the same shall be repaired or rebuilt as speedily as practical under the
circumstances at the expense of the Landlord, unless this Lease is
terminated as provided in this Article 22, and during the period required
for restoration, a just and proportionate part of Base and Additional
Rental shall be abated until the Demised Premises are repaired or rebuilt.
(b) If the Demised Premises are (i) damaged to such an extent that
repairs cannot, in Landlord's judgment, be completed within one hundred
eighty (180) days after the date of the casualty or (ii) damaged or
destroyed as a result of a risk which is not insured under standard fire
insurance policies with extended coverage endorsement, or (iii) damaged or
destroyed during the last eighteen (18) months of the Lease Term, or if the
Building is damaged in whole or in part (whether or not the Demised Premises
are damaged), to such an extent that the Building cannot, in Landlord's
judgment, be operated economically as an integral unit, then and in any
such event Landlord may at its option terminate this Lease by notice in
writing to the Tenant within sixty (60) days after the date of such
occurrence, provided, however, Landlord will use its best efforts to
attempt to provide such notice within thirty (30) days of such occurrence.
If the Demised Premises are damaged to such an extent that repairs cannot,
in Landlord's judgment, be completed within one hundred eighty (180) days
after the date of the casualty or if the Demised Premises are substantially
damaged during the last eighteen (18) months of the Lease Term, then in
either such event Tenant may elect to terminate this Lease by notice in
writing to Landlord within fifteen (15) days after the date of such
occurrence. Unless Landlord or Tenant elects to terminate this Lease as
hereinabove provided, this Lease will remain in full force and effect and
Landlord shall repair such damage at its expense to the extent required
under subparagraph (c) below as expeditiously as possible under the
circumstances.
(c) If Landlord should elect or be obligated pursuant to subparagraph
(a) above to repair or rebuild because of any damage or destruction,
Landlord's obligation shall be limited to the original Building and any
other work or improvements which were originally performed or installed at
Landlord's expense as described in EXHIBIT "D" hereto or with the proceeds
of the Construction Allowance. If the cost of performing such repairs
exceeds the actual proceeds of insurance paid or payable to Landlord on
account of such casualty, or if Landlord's mortgagee or the lessor under a
ground or underlying lease shall require that any insurance proceeds from a
casualty loss be paid to it, Landlord may terminate this Lease unless
Tenant, within fifteen (15) days after demand therefor, deposits with
Landlord a sum of money sufficient to pay the difference between the cost
of repair and the proceeds of the insurance available to Landlord for such
purpose.
(d) In no event shall Landlord be liable for any loss or damage
sustained by Tenant by reason of casualties mentioned hereinabove or any
other accidental casualty unless such loss or damage is not insured and was
caused by the gross negligence or willful misconduct of Landlord.
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23. LANDLORD'S LIEN. Notwithstanding any other provision of this Lease or
of applicable law to the contrary, Landlord's lien rights and right of distraint
with respect to the personal property of Tenant, in the case of an event of
default of Tenant or otherwise, if any, shall not apply to any computer
software, computer tapes, computer program tapes, computer program disks,
computer program documentation and manuals, computer program codes, computers,
customer lists or other proprietary information which is the property of Tenant
or in the possession of Tenant.
24. SERVICES BY LANDLORD. Landlord shall provide the Building Standard
Services described on EXHIBIT "E" attached hereto and by reference made a part
hereof.
25. ATTORNEYS' FEES AND HOMESTEAD. If any Rent or other debt owing by
Tenant to Landlord hereunder is collected by or through an attorney-at-law,
Tenant agrees to pay an additional amount equal to fifteen percent (15%) of such
sum as attorney's fees. If Landlord uses the services of any attorney in order
to secure compliance with any other provisions of this Lease, to recover damages
for any breach or default of any other provisions of this Lease, or to terminate
this Lease or evict Tenant, Tenant shall reimburse Landlord upon demand for any
and all attorney's fees and expenses so incurred by Landlord. Tenant waives all
homestead rights and exemptions which it may have under any law as against any
obligation owing under this Lease, and assigns to Landlord its homestead and
exemptions to the extent necessary to secure payment and performance of its
covenants and agreements hereunder. If there is a law suit or court action
between Landlord and Tenant arising out of or under this Lease or the terms and
conditions stated herein, the prevailing party in such law suit or court action
shall be entitled to and shall collect from the non-prevailing party the
reasonable attorney's fees and court costs actually incurred by the prevailing
party with respect to said lawsuit or court action.
26. TIME. Time is of the essence of this Lease and whenever a certain day
is stated for payment or performance of any obligation of Tenant or Landlord,
the same enters into and becomes a part of the consideration hereof.
27. SUBORDINATION AND ATTORNMENT.
(a) Tenant agrees that this Lease and all rights of Tenant hereunder
are and shall be subject and subordinate to any ground or underlying lease
which may now or hereafter be in effect regarding the Project or any
component thereof, to any mortgage now or hereafter encumbering the Demised
Premises or the Project or any component thereof, to all advances made or
hereafter to be made upon the security of such mortgage, to all amendments,
modifications, renewals, consolidations, extensions, and restatements of
such mortgage, and to any replacements and substitutions for such mortgage.
The terms of this provision shall be self-operative and no further
instrument of subordination shall be required. Tenant, however, upon
request of any party in interest, shall execute promptly such instrument or
certificates as may be reasonably required to carry out the intent hereof,
whether said requirement is that of Landlord or any other party in
interest, including, without limitation, any mortgagee. Landlord is hereby
irrevocably vested with full power and
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authority as attorney-in-fact for Tenant and in Tenant's name, place and
stead, to subordinate Tenant's interest under this Lease to the lien or
security title of any mortgage and to any future instrument amending,
modifying, renewing, consolidating, extending, restating, replacing or
substituting any such mortgage.
(b) If any mortgagee or lessee under a ground or underlying lease
elects to have this Lease superior to its mortgage or lease and signifies
its election in the instrument creating its lien or lease or by separate
recorded instrument, then this Lease shall be superior to such mortgage or
lease, as the case may be. In such case, Tenant shall deliver to any such
mortgagee within ten (10) days of a written request an attornment agreement
whose terms are consistent with the provisions of Article 27(c), providing
that Tenant shall continue to abide by and comply with the terms and
conditions of this Lease in the event such mortgagee takes title to the
Property, so long as the mortgagee delivers to Tenant a non-disturbance
agreement (which non-disturbance agreement may be a part of the above
mentioned attornment agreement), which non-disturbance agreement shall
provide that so long as Tenant continues to abide by and comply with the
terms and conditions of this Lease, mortgagee will permit Tenant to
continue to occupy the Demised Premises. The term "mortgage", as used in
this Lease, includes any deed to secure debt, deed of trust or security
deed and any other instrument creating a lien in connection with any other
method of financing or refinancing. The term "mortgagee", as used in this
Lease, refers to the holder(s) of the indebtedness secured by a mortgage.
(c) In the event any proceedings are brought for the foreclosure of,
or in the event of exercise of the power of sale under, any mortgage
covering the Demised Premises or the Project, or in the event the interests
of Landlord under this Lease shall be transferred by reason of deed in lieu
of foreclosure or other legal proceedings, or in the event of termination
of any lease under which Landlord may hold title, Tenant shall, at the
option of the transferee or purchaser at foreclosure or under power of
sale, or the lessor of the Landlord upon such lease termination, as the
case may be (sometimes hereinafter called "such person"), attorn to such
person and shall recognize and be bound and obligated hereunder to such
person as the Landlord under this Lease provided that such person delivers
a non-disturbance agreement (which may be a part of the attornment
agreement), which non-disturbance agreement provides that so long as Tenant
continues to abide by and comply with the terms and conditions of this
Lease (subject to the provisions and conditions immediately below), such
person will continue to allow the Tenant to occupy the Demised Premises;
and further provided, however, that no such person shall be (i) bound by
any payment of Rent for more than one (1) month in advance, except
prepayments in the nature of security for the performance by Tenant of its
obligations under this Lease (and then only if such prepayments have been
deposited with and are under the control of such person); (ii) bound by any
amendment or modification of this Lease made without the express written
consent of the mortgagee or lessor of the Landlord, as the case may be;
(iii) obligated to cure any defaults under this Lease of any prior landlord
(including Landlord); (iv) liable for any act or omission of any prior
landlord (including Landlord); (v) subject to any offsets or
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defenses which Tenant might have against any prior landlord (including
Landlord); or (vi) bound by any warranty or representation of any prior
landlord (including Landlord) relating to work performed by any prior
landlord (including Landlord) under this Lease. Tenant agrees to execute
any attornment agreement not in conflict herewith requested by Landlord,
the mortgagee or such person. Tenant's obligation to attorn to such person
shall survive the exercise of any such power of sale, foreclosure or other
proceeding. Tenant agrees that the institution of any suit, action or
other proceeding by any mortgagee to realize on Landlord's interest in the
Demised Premises or the Building pursuant to the powers granted to a
mortgagee under its mortgage, shall not, by operation of law or otherwise,
result in the cancellation or termination of the obligations of the Tenant
hereunder. Landlord and Tenant agree that notwithstanding that this Lease
is expressly subject and subordinate to any mortgages, any mortgagee, its
successors and assigns, or other holder of a mortgage or of a note secured
thereby, may sell the Demised Premises or the Building, in the manner
provided in the mortgage and may, at the option of such mortgagee, its
successors and assigns, or other holder of the mortgage or note secured
thereby, make such sale of the Demised Premises or Building subject to this
Lease.
(d) Landlord hereby represents that, as of the date of this Lease,
there are no mortgages, security deeds, deeds of trust or other security
interests encumbering the Land or the Building.
28. ESTOPPEL CERTIFICATES.
(a) Within ten (10) days after request therefor by Landlord, Tenant
agrees to execute and deliver to Landlord in recordable form an estoppel
certificate addressed to Landlord, any mortgagee or assignee of Landlord's
interest in, or purchaser of, the Demised Premises or the Building or any
part thereof, certifying (if such be the case) that this Lease is
unmodified and is in full force and effect (and if there have been
modifications, that the same is in full force and effect as modified and
stating said modifications); that there are no defenses or offsets against
the enforcement thereof or stating those claimed by Tenant; and stating the
date to which Rent and other charges have been paid. Such certificate
shall also include such other information as may reasonably be required by
such mortgagee, proposed mortgagee, assignee, purchaser or Landlord. Any
such certificate may be relied upon by Landlord, any mortgagee, proposed
mortgagee, assignee, purchaser and any other party to whom such certificate
is addressed.
(b) If Landlord has consented to an assignment or sublease of this
Lease as provided herein, Landlord shall, within twenty (20) days of the
request by Tenant, execute, acknowledge and deliver to Tenant or the
prospective assignee or any prospective subtenant an Estoppel Certificate
in recordable form, or in such other form as Tenant may from time to time
require, evidencing whether or not (i) this Lease is in full force and
effect; (ii) this Lease has been amended in any way; (iii) there are any
existing defaults on the part of Tenant hereunder or defenses or offsets
against the enforcement of this Lease to knowledge
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of Landlord (specifying the nature of such defaults, defenses or offsets,
if any); (iv) the date to which Base Rent and other amounts due hereunder,
if any, have been paid; and (v) any such other information as may be
reasonably requested by Tenant. Landlord shall also deliver such an
Estoppel Certificate if Tenant so requests and Tenant has entered into a
legitimate business transaction in which such a certificate is normally and
customarily required. Each certificate delivered pursuant to this
Paragraph may be relied on by Tenant, the prospective assignee of Tenant's
interest hereunder and any other intended recipient. If Landlord fails to
deliver an Estoppel Certificate that it is required to deliver within the
time required, and further fails to deliver such certificate within five
(5) business days after a second written request, Landlord shall be deemed
to have delivered a certificate which indicated that, to the best of
Landlord''s knowledge, there were no events of default, amendments,
defenses or offsets and that all payments currently due from Tenant had
been paid. Notwithstanding the foregoing, if such a certificate is deemed
delivered, Landlord shall not be deemed to have waived any subsequent or
ongoing events of default or any rights, including rights to receive
payments due under the Lease.
29. NO ESTATE. This Lease shall create the relationship of landlord and
tenant only between Landlord and Tenant and no estate shall pass out of
Landlord. Tenant shall have only an usufruct, not subject to levy and sale and
not assignable in whole or in part by Tenant except as herein provided.
30. CUMULATIVE RIGHTS. All rights, powers and privileges conferred
hereunder upon the parties hereto shall be cumulative to, but not restrictive
of, or in lieu of those conferred by law.
31. HOLDING OVER. If Tenant remains in possession after expiration or
termination of the Lease Term with or without Landlord's written consent, Tenant
shall become a tenant-at-sufferance, and there shall be no renewal of this Lease
by operation of law. During the period of any such holding over, all provisions
of this Lease shall be and remain in effect except that the monthly rental shall
be double the amount of Base Rent (including any adjustments as provided herein)
payable for the last full calendar month of the Lease Term including renewals or
extensions plus, for each month or portion thereof after the expiration of the
Lease Term, an amount equal to Tenant's Additional Rental for the last full
calendar month of the Lease Term. Notwithstanding the foregoing, if Tenant has
exercised its renewal option as set forth in Paragraph 5 of EXHIBIT "G", the
Base Rent component of the rent for the holding over period shall be one hundred
fifty percent (150%) of the Base Rent for the last full calendar month of the
Renewal Term (not "double") plus an amount equal to Tenant's Additional Rental
for the last full calendar month of the Renewal Term. The inclusion of the
preceding sentence in this Lease shall not be construed as Landlord's consent
for Tenant to hold over.
32. SURRENDER OF PREMISES. Upon the expiration or other termination of
this Lease, Tenant shall quit and surrender to Landlord the Demised Premises and
every part thereof and all alterations, additions and improvements thereto,
broom clean and in good condition and state of repair,
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excepting only (i) reasonable wear and tear and (ii) casualty damage and
condemnation loss, reasonable wear and tear only excepted. If Tenant is not
then in default, Tenant shall remove all personalty and equipment not
attached to the Demised Premises which it has placed upon the Demised
Premises including any signage installed by Tenant, computers and related
equipment including peripheral equipment and tape and disk vaults, all
projectors and projection screens and related equipment, blackboards
whiteboards, tackboards, and other display units, telephone systems, cipher
locks and electronic security systems, paging systems, kitchen equipment,
including but not limited to any refrigerators, microwave ovens, dishwasher,
disposal, trash compactor, or other built-in kitchen equipment, phone system
equipment including patch panel and subfeed panel locations for such phone
system, fire suppression systems, CRT patch panels, and Tenant shall restore
the Demised Premises to the condition immediately preceding the time of
placement thereof excepting only (i) reasonable wear and tear and (ii)
casualty damage and condemnation loss. If Tenant shall fail or refuse to
remove all of Tenant's effects, personalty and equipment from the Demised
Premises upon the expiration or termination of this Lease for any cause
whatsoever or upon the Tenant being dispossessed by process of law or
otherwise, such effects, personalty and equipment shall be deemed
conclusively to be abandoned and may be appropriated, sold, stored, destroyed
or otherwise disposed of by Landlord without written notice to Tenant or any
other party and without obligation to account for them. Tenant shall pay
Landlord on demand any and all reasonable expenses incurred by Landlord in
the removal of such property, including, without limitation, the cost of
repairing any damage to the Building or Project caused by the removal of such
property and storage charges (if Landlord elects to store such property).
The covenants and conditions of this Article 32 shall survive any expiration
or termination of this Lease.
33. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and may be delivered in person to either party or may be
sent by courier or by United States Mail, certified, return receipt requested,
postage prepaid. Any such notice shall be deemed received by the party to whom
it was sent (i) in the case of personal delivery or courier delivery, on the
date of delivery to such party, and (ii) in the case or certified mail, the date
receipt is acknowledged on the return receipt for such notice or, if delivery is
rejected or refused or the U.S. Postal Service is unable to deliver same because
of changed address of which no notice was given pursuant hereto, the first date
of such rejection, refusal or inability to deliver. All such notices shall be
addressed to Landlord or Tenant at their respective address set forth
hereinabove or at such other address as either party shall have theretofore
given to the other by notice as herein provided. Tenant hereby designates and
appoints as its agent to receive notice of all distraint proceedings and all
other notices called for or required under this Lease, the person in charge of
the Demised Premises at the time said notice is given or occupying said Demised
Premises at said time; and, if no person is in charge of or occupying the said
Demised Premises, then such service or notice may be made by attaching the same,
in lieu of mailing, on the main entrance to the Demised Premises.
34. DAMAGE OR THEFT OF PERSONAL PROPERTY. All personal property brought
into Demised Premises by Tenant, or Tenant's employees or business visitors,
shall be at the risk of Tenant only, and Landlord shall not be liable for theft
thereof or any damage thereto occasioned by any act of co-tenants, occupants,
invitees or other users of the Building or any other person unless caused by
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the gross negligence or willful misconduct of Landlord. Landlord shall not at
any time be liable for damage to any property in or upon the Demised Premises,
which results from power surges or other deviations from the constancy of
electrical service or from gas, smoke, water, rain, ice or snow which issues or
leaks from or forms upon any part of the Building or from the pipes or plumbing
work of the same, or from any other place whatsoever unless caused by the gross
negligence or willful misconduct of Landlord.
35. EMINENT DOMAIN.
(a) If all or part of the Demised Premises shall be taken for any
public or quasi-public use by virtue of the exercise of the power of
eminent domain or by private purchase in lieu thereof, this Lease shall
terminate as to the part so taken as of the date of taking, and, in the
case of a partial taking, either Landlord or Tenant shall have the right to
terminate this Lease as to the balance of the Demised Premises by written
notice to the other within thirty (30) days after such date; provided,
however, that a condition to the exercise by Tenant of such right to
terminate shall be that the portion of the Demised Premises taken shall be
of such extent and nature as substantially to handicap, impede or impair
Tenant's use of the balance of the Demised Premises. If title to so much
of the Building is taken that a reasonable amount of reconstruction thereof
will not in Landlord's sole discretion result in the Building being a
practical improvement and reasonably suitable for use for the purpose for
which it is designed, then this Lease shall terminate on the date that the
condemning authority actually takes possession of the part so condemned or
purchased.
(b) If this Lease is terminated under the provisions of this Article
35, Rent shall be apportioned and adjusted as of the date of termination.
Tenant shall have no claim against Landlord or against the condemning
authority for the value of any leasehold estate or for the value of the
unexpired Lease Term provided that the foregoing shall not preclude any
claim that Tenant may have against the condemning authority for the
unamortized cost of leasehold improvements, to the extent the same were
installed at Tenant's expense (and not with the proceeds of the
Construction Allowance), or for loss of business, moving expenses or other
consequential damages, in accordance with subparagraph (d) below.
(c) If there is a partial taking of the Building and this Lease is
not thereupon terminated under the provisions of this Article 35, then this
Lease shall remain in full force and effect, and Landlord shall, within a
reasonable time thereafter, repair or reconstruct the remaining portion of
the Building to the extent necessary to make the same a complete
architectural unit; provided that in complying with its obligations
hereunder Landlord shall not be required to expend more than the net
proceeds of the condemnation award which are paid to Landlord.
(d) All compensation awarded or paid to Landlord upon a total or
partial taking of the Demised Premises or the Building shall belong to and
be the property of Landlord without any participation by Tenant. Nothing
herein shall be construed to preclude Tenant
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from prosecuting any claim directly against the condemning authority for
loss of business, for damage to, and cost of removal of, trade fixtures,
furniture and other personal property belonging to Tenant, and for the
unamortized cost of leasehold improvements to the extent same were
installed at Tenant's expense (and not with the proceeds of the
Construction Allowance), provided, however, that no such claim shall
diminish or adversely affect Landlord's award. In no event shall Tenant
have or assert a claim for the value of any unexpired term of this Lease.
Subject to the foregoing provisions of this subparagraph (d), Tenant hereby
assigns to Landlord any and all of its right, title and interest in or to
any compensation awarded or paid as a result of any such taking.
(e) Notwithstanding anything to the contrary contained in this
Article 35, if, during the Lease Term, the use or occupancy of any part of
the Building or the Demised Premises shall be taken or appropriated
temporarily for any public or quasi-public use under any governmental law,
ordinance, or regulations, or by right of eminent domain, this Lease shall
be and remain unaffected by such taking or appropriation and Tenant shall
continue to pay in full all Rent payable hereunder by Tenant during the
Lease Term. In the event of any such temporary appropriation or taking,
Tenant shall be entitled to receive that portion of any award which
represents compensation for the loss of use or occupancy of the Demised
Premises during the Lease Term, and Landlord shall be entitled to receive
that portion of any award which represents the cost of restoration and
compensation for the loss of use or occupancy of the Demised Premises after
the end of the Lease Term.
36. PARTIES. The term "Landlord", as used in this Lease, shall include
Landlord and its assigns and successors. It is hereby covenanted and agreed by
Tenant that should Landlord's interest in the Demised Premises cease to exist
for any reason during the Lease Term, then notwithstanding the happening of such
event, this Lease nevertheless shall remain in full force and effect, and Tenant
hereby agrees to attorn to the then owner of the Demised Premises. The term
"Tenant" shall include Tenant and its heirs, legal representatives and
successors, and shall also include Tenant's assignees and sublessees, if this
Lease shall be validly assigned or the Demised Premises sublet for the balance
of the Lease Term or any renewals or extensions thereof. In addition, Landlord
and Tenant covenant and agree that Landlord's right to transfer or assign
Landlord's interest in and to the Demised Premises, or any part or parts
thereof, shall be unrestricted, and that in the event of any such transfer or
assignment by Landlord which includes the Demised Premises and there is an
assumption of such obligations by the transferee or assignee, Landlord's
obligations to Tenant hereunder shall cease and terminate, and Tenant shall look
only and solely to Landlord's assignee or transferee for performance thereof.
37. INDEMNITIES. Subject to Article 18 above, Tenant hereby indemnifies
Landlord from and agrees to hold Landlord harmless against any and all
liability, loss, cost, damage or expense, including, without limitation, court
costs and reasonable attorneys' fees, incurred or suffered by Landlord arising
out of or resulting from (i) any negligence or willful misconduct of Tenant, its
agents, contractors or employees acting within the scope of their agency or
employment, or (ii) any damage to any property or injury or death to any person
in or upon the Demised Premises regardless
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of cause (unless caused by the negligence or willful misconduct of Landlord or
Landlord's agents, contractors or employees acting within the scope of their
agency or employment or the breach by Landlord of its obligations hereunder).
Subject to the provisions of Articles 18, 34 and 40 and subparagraph (e) of
EXHIBIT "E" attached hereto and any other provision herein that expressly limits
Landlord's liability, Landlord hereby indemnifies Tenant from and agrees to hold
Tenant harmless against any and all liability, loss, cost, damage or expense,
including without limitation, court costs and reasonable attorneys fees,
incurred or suffered by Tenant arising out of or resulting from (i) any
negligence or willful misconduct of Landlord, its agents, contractors or
employees acting within the scope of their agency or employment or (ii) any
damage to property or injury or death to any person occurring outside the
Demised Premises regardless of cause (unless caused by the negligence or willful
misconduct of Tenant, its agents, contractors or employees acting within the
scope of their agency or employment) or by the breach by Tenant of its
obligations hereunder. The provisions of this Article 37 shall survive any
termination of this Lease with respect to any damage, injury or death prior to
such termination.
38. Intentionally Deleted.
39. FORCE MAJEURE. In the event of strike, lockout, labor trouble, civil
commotion, Act of God, or any other cause beyond a party's control (collectively
"force majeure") resulting in the Landlord's inability to supply the services or
perform the other obligations required of Landlord hereunder, this Lease shall
not terminate and Tenant's obligation to pay Rent and all other charges and sums
due and payable by Tenant shall not be affected or excused and Landlord shall
not be considered to be in default under this Lease. If, as a result of force
majeure, Tenant is delayed in performing any of its obligations under this
Lease, other than Tenant's obligation to take possession of the Demised Premises
on or before the Rental Commencement Date and to pay Rent and all other charges
and sums payable by Tenant hereunder, Tenant's performance shall be excused for
a period equal to such delay and Tenant shall not during such period be
considered to be in default under this Lease with respect to the obligation,
performance of which has thus been delayed.
-32-
40. LANDLORD'S LIABILITY.
(a) Except as provided in Articles 40(b) and 40(c) below, Landlord
shall have no personal liability with respect to any of the provisions of
this Lease. Except as provided in Articles 40(b) and 40(c) below, if
Landlord is in default with respect to its obligations under this Lease,
Tenant shall look solely to the equity of Landlord in and to the Building
and the Land described in EXHIBIT "A" hereto for satisfaction of Tenant's
remedies, if any. Except as provided in Articles 40(b) and 40(c) below, it
is expressly understood and agreed that Landlord's liability under the
terms of this Lease shall in no event exceed the amount of its interest in
and to said Land and Building. In no event shall any partner of Landlord
nor any joint venturer in Landlord, nor any officer, director or
shareholder of Landlord or any such partner or joint venturer of Landlord
be personally liable with respect to any of the provisions of this Lease.
(b) If a court issues a final and unappealable order, ordering
Landlord to pay Tenant a money judgement because of Landlord's default,
then except in those instances listed in Article 40(c) below, Tenant's sole
remedy to satisfy the judgment shall be from:
(i) Landlord's interest in the Building and Land
including the rental income (but only rental income not applied to
Operating Expenses or debt service on the Building) and proceeds from
sale accruing or received after the date the judgement becomes final
and unappealable; and
(ii) any insurance or condemnation proceeds received
because of damage or condemnation to, or of, the Building or Land that
become available after the judgement becomes final and unappealable
and are not applied to restore the Building or Land.
(c) Notwithstanding the foregoing, Landlord will have personal
liability when and to the extent provided below:
(i) Landlord has failed to apply insurance or
condemnation proceeds as required by the Lease, but only to the extent
of such misappropriation of proceeds;
(ii) Landlord misappropriated the funds of Tenant or
escrow funds, but only to the extent of such misappropriation of
proceeds; or
(iii) Landlord has failed to carry insurance
required by Article 17(b), but only to the extent of insurance
proceeds that would have been available after the date the judgement
becomes final and unappealable but for such failure.
Nothing in this Article 40 shall be interpreted to mean that Tenant
cannot be awarded specific performance, an injunction or other equitable relief.
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41. LANDLORD'S COVENANT OF QUIET ENJOYMENT. Provided Tenant performs the
terms, conditions and covenants of this Lease, and subject to the terms and
provisions hereof, Landlord covenants and agrees to provide for the benefit of
Tenant the quiet and peaceful possession of the Demised Premises, for the Lease
Term, without hindrance, claim or molestation by Landlord or any other person
lawfully claiming under Landlord.
42. SECURITY DEPOSITS.
(a) As security for Tenant's obligations to take possession of the
Demised Premises in accordance with the terms of this Lease and to
comply with all of Tenant's covenants, warranties and agreements
hereunder, Tenant has deposited with Landlord the sum set forth in
Article l(m)(i) above. Such amount shall be applied by Landlord to the
first monthly installment(s) of Base Rental as they become due
hereunder. In the event Tenant fails to take possession of the Demised
Premises as aforesaid, said sum shall be retained by Landlord for
application in reduction, but not in satisfaction, of damages suffered
by Landlord as a result of such breach by Tenant.
(b) Intentionally omitted.
(c) In the event of a sale or transfer of Landlord's interest in the
Demised Premises or the Building or a lease by Landlord of the Building,
Landlord shall have the right to transfer the within described security
deposit to the purchaser or lessee, as the case may be, and Landlord shall
be relieved of all liability to Tenant for the return of such security
deposit. The Tenant shall look solely to the new owner or lessor for the
return of said security deposits upon the acknowledgment of receipt of said
amount by the purchaser or lessee. The Tenant shall look solely to the new
owner or lessor for the return of said security deposits. The security
deposits shall not be mortgaged, assigned or encumbered by Tenant. In the
event of a permitted assignment or subletting under this Lease by Tenant,
the security deposits shall be held by Landlord as a deposit made by the
permitted assignee or subtenant and the Landlord shall have no further
liability with respect to the return of said security deposits to the
original Tenant.
(d) Landlord shall not be required to keep the security deposit
separate from its general accounts.
43. HAZARDOUS SUBSTANCES.
(a) Tenant hereby covenants and agrees that Tenant shall not cause or
permit any "Hazardous Substances" (as hereinafter defined) to be generated,
placed, held, stored, used, located or disposed of at the Project or any
part thereof, 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
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strictly complies or causes compliance with all applicable governmental
rules and regulations concerning the use, storage, production,
transportation and disposal of such Hazardous Substances. Promptly upon
receipt of Landlord's request, Tenant shall submit to Landlord true and
correct copies of any reports filed by Tenant with any governmental or
quasi-governmental authority regarding the generation, placement, storage,
use, treatment or disposal of Hazardous Substances on or about the Demised
Premises. For purposes of this Article 43, "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 in any list of toxic pollutants designated by
Congress or the EPA or 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 by or
through Tenant or its employees, agents, contractors or invitees
(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.
(b) Landlord covenants and agrees that if any Hazardous Substances
other than "Permitted Hazardous Substances" as defined below are found in
the Project in such amounts and locations as would require Landlord to
remove such materials as a matter of law, then Landlord shall remove or
cause to be removed such Hazardous Substances. Such removal shall be
accomplished in a manner that does not cause an unreasonable disruption to
Tenant's operations in the Demised Premises. The term "Permitted Hazardous
Substances" shall mean such Hazardous Substances as are commonly and
legally used or stored as a consequence of using, maintaining or operating
the Project, 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, and so long as
Landlord strictly complies or causes compliance with all applicable
governmental rules and regulations concerning the use, storage, production,
transportation and disposal of such Hazardous Substances.
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44. SUBMISSION OF LEASE. The submission of this Lease for examination
does not constitute an offer to lease and this Lease shall be effective only
upon execution hereof by Landlord and Tenant.
45. SEVERABILITY. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws, the remainder of this
Lease shall not be affected thereby, and in lieu of each clause or provision of
this Lease which is illegal, invalid or unenforceable, there shall be added as a
part of this Lease a clause or provision as nearly identical to the said clause
or provision as may be legal, valid and enforceable.
46. ENTIRE AGREEMENT. This Lease contains the entire agreement of the
parties and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied herein shall be of any force or
effect. No failure of Landlord to exercise any power given Landlord hereunder,
or to insist upon strict compliance by Tenant with any obligation of Tenant
hereunder, and no custom or practice of the parties at variance with the terms
hereof, shall constitute a waiver of Landlord's right to demand exact compliance
with the terms hereof. This Lease may not be altered, waived, amended or
extended except by an instrument in writing signed by Landlord and Tenant. This
Lease is not in recordable form, and Tenant agrees not to record or cause to be
recorded this Lease or any short form or memorandum thereof.
47. HEADINGS. The use of headings herein is solely for the convenience of
indexing the various paragraphs hereof and shall in no event be considered in
construing or interpreting any provision of this Lease.
48. BROKER. Broker(s) (as defined in Article 1[n]) is (are) entitled to a
leasing commission from Landlord by virtue of this Lease, which leasing
commission shall be paid by Landlord to Broker(s) in accordance with the terms
of a separate agreement between Landlord and Broker(s). Tenant hereby
authorizes Broker(s) and Landlord to identify Tenant as a tenant of the Building
and to state the amount of space leased by Tenant in advertisements and
promotional materials relating to the Building. Tenant represents and warrants
to Landlord that (except with respect to any Broker[s] identified in Article
1[n][ hereinabove) no broker, agent, commission salesperson, or other person has
represented Tenant in the negotiations for and procurement of this Lease and of
the Demised Premises and that (except with respect to any Broker[s] identified
in Article 1[n] hereinabove) no commissions, fees, or compensation of any kind
are due and payable in connection herewith to any broker, agent, commission
salesperson, or other person as a result of any act or agreement of Tenant.
Tenant agrees to indemnify and hold Landlord harmless from all loss, liability,
damage, claim, judgment, cost or expense (including reasonable attorneys' fees
and court costs) suffered or incurred by Landlord as a result of a breach by
Tenant of the representation and warranty contained in the immediately preceding
sentence or as a result of Tenant's failure to pay commissions, fees, or
compensation due to any broker who represented Tenant, whether or not disclosed,
or as a result of any claim for any fee, commission or similar compensation with
respect to this Lease made by any broker, agent or finder (other than the
Broker[s] identified in Article 1[n] hereinabove) claiming to have dealt with
Tenant, whether or not such claim is meritorious.
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Landlord represents and warrants to Tenant that (except with respect to any
Broker(s) identified in Article 1(n) hereinabove) no broker, agent, commission
salesperson, or other person has represented Landlord in the negotiations for
and procurement of this Lease and of the Demised Premises and that (except with
respect to any Broker(s) identified in Article 1(n) hereinabove) no commissions,
fees, or compensation of any kind are due and payable in connection herewith to
any broker, agent, commission salesperson, or other person as a result of any
act or agreement of Landlord. Landlord agrees to indemnify and hold Tenant
harmless from all loss, liability, damage, claim, judgment, cost or expense
(including reasonable attorneys fees and court costs) suffered or incurred by
Tenant as a result of a breach by Landlord of the representation and warranty
contained in the immediately preceding sentence or as a result of Landlord's
failure to pay commissions, fees, or compensation due to any broker who
represented Landlord, whether or not disclosed, or as a result of any claim for
any fee, commission or similar compensation with respect to this Lease made by
any broker, agent or finder (other than the Broker(s) identified in Article 1(n)
hereinabove) claiming to have dealt with Landlord, whether or not such claim is
meritorious.
49. GOVERNING LAW. The laws of the State of Georgia shall govern the
validity, performance and enforcement of this Lease.
50. SPECIAL STIPULATIONS. The special stipulations attached hereto as
EXHIBIT "G" are hereby incorporated herein by this reference as though fully set
forth. In the event of any conflict between the terms of the Lease and such
Special Stipulations, the Special Stipulations shall control.
51. AUTHORITY. If Tenant executes this Lease as a corporation, each of
the persons executing this Lease on behalf of Tenant does hereby personally
represent and warrant that Tenant is a duly incorporated or a duly qualified (if
a foreign corporation) corporation and is fully authorized and qualified to do
business in the State in which the Demised Premises are located, that the
corporation has full right and authority to enter into this Lease, and that each
person signing on behalf of the corporation is an officer of the corporation and
is authorized to sign on behalf of the corporation. If Tenant signs as a
partnership, joint venture, or sole proprietorship or other business entity
(each being herein called "Entity"), each of the persons executing on behalf of
Tenant does hereby covenant and warrant that Tenant is a duly authorized and
existing Entity, that Tenant has full right and authority to enter into this
Lease, that all persons executing this Lease on behalf of the Entity are
authorized to do so on behalf of the Entity, and that such execution is fully
binding upon the Entity and its partners, joint venturers, or principal, as the
case may be. Upon the request of Landlord, Tenant shall deliver to Landlord
documentation satisfactory to Landlord evidencing Tenant's compliance with this
Article, and Tenant agrees to promptly execute all necessary and reasonable
applications or documents as reasonably requested by Landlord, required by the
jurisdiction in which the Demised Premises is located, to permit the issuance of
necessary permits and certificates for Tenant's use and occupancy of the Demised
Premises.
52. JOINT AND SEVERAL LIABILITY. If Tenant comprises more than one
person, corporation, partnership or other entity, the liability hereunder of all
such persons, corporations, partnerships or other entities shall be joint and
several.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day, month and year first above written.
"LANDLORD":
COUSINS PROPERTIES INCORPORATED,
a Georgia corporation
By: /s/ XXXX XXXXXX
------------------------
Its: SENIOR VICE PRESIDENT
------------------------
(CORPORATE SEAL)
"TENANT":
THE SYSTEM WORKS, INC.
By: /s/ X. XXXXXX
-------------------------
Its: PRESIDENT
-------------------------
Attest: /s/ XXXXX X. XXXXXX
--------------------
Its: SECRETARY
-------------------------
(CORPORATE SEAL)
-38-
RULES AND REGULATIONS
1. No sign, picture, advertisement or notice visible from the exterior of
the Demised Premises shall be installed, affixed, inscribed, painted or
otherwise displayed by Tenant on any part of the Demised Premises or the
Building unless the same is first approved by Landlord. Any such sign,
picture, advertisement or notice approved by Landlord shall be painted
or installed for Tenant at Tenant's cost by Landlord or by a party
approved by Landlord. No awnings, curtains, blinds, shades or screens
shall be attached to or hung in, or used in connection with any window
or door of the Demised Premises without the prior consent of the
Landlord, including approval by the Landlord of the quality, type,
design, color and manner of attachment.
2. Tenant agrees that its use of electrical current shall never exceed
the capacity of existing feeders, risers or wiring installation.
3. The Demised Premises shall not be used for storage of merchandise held
for sale to the general public. Tenant shall not do or permit to be
done in or about the Demised Premises or Building anything which shall
increase the rate of insurance on said Building or obstruct or interfere
with the rights of other lessees of Landlord or annoy them in any way,
including, but not limited to, using any musical instrument, making loud
or unseemly noises, or singing, etc. The Demised Premises shall not be
used for sleeping or lodging. No cooking or related activities shall be
done or permitted by Tenant in the Demised Premises except with
permission of Landlord. Tenant will be permitted to use for its own
employees within the Demised Premises a small microwave oven and
Underwriters' Laboratory approved equipment for brewing coffee, tea, hot
chocolate and similar beverages, provided that such use is in accordance
with all applicable federal, state, county and city laws, codes,
ordinances, rules and regulations. No vending machines of any kind will
be installed, permitted or used on any part of the Demised Premises
without the prior consent of Landlord, except for those installed for
use by Tenant or its employees, guests or invitees. No part of said
Building or Demised Premises shall be used for gambling, immoral or
other unlawful purposes. No intoxicating beverage shall be sold in said
Building or Demised Premises without prior written consent of the
Landlord. No area outside of the Demised Premises shall be used for
storage purposes at any time.
4. Except as provided in this Paragraph 4, no birds or animals of any kind
shall be brought into the Building. Trained seeing-eye dogs required to
be used by the visually impaired and fish in aquariums whose weight does
not exceed floor load limits are permissible. However, Tenant assumes
all liability for damage resulting from or related to the presence of
the aquariums in the Demised Premises. No bicycles, motorcycles or
other motorized vehicles shall be brought into the Building.
5. The sidewalks, entrances, passages, corridors, halls, elevators, and
stairways in the Building shall not be obstructed by Tenant or used for
any purposes other than those for which same were intended as ingress
and egress. No windows, floors or skylights that reflect or admit light
into the Building shall be covered or obstructed by Tenant. Toilets,
wash basins and sinks shall not be used for any purpose other than those
for which they were constructed, and no sweeping, rubbish, or other
obstructing or improper substances shall be thrown therein. Any damage
resulting to them, or to heating apparatus, from misuse by Tenant or its
employees, shall be borne by Tenant.
6. Only two (2) keys to the Building (during one Sole Tenancy Period) or to
main entrances to each floor of the Demised Premises (during periods
other than the Sole Tenancy Period) will be furnished Tenant without
charge. Landlord may make a reasonable charge for any additional keys.
Except as provided in Article 16, no additional lock, latch or bolt of
any kind shall be placed upon any door nor shall any changes be made in
existing locks without written consent of Landlord and Tenant shall in
each such case furnish Landlord with a key for any such lock. At the
termination of the Lease, Tenant shall return to Landlord all keys
furnished to Tenant by Landlord, or otherwise procured by Tenant, and in
the event of loss of any keys so furnished, Tenant shall pay to Landlord
the cost thereof.
7. Landlord shall have the right to prescribe the weight, position and
manner of installation of heavy articles such as safes, machines and
other equipment brought into the Building. No safes, furniture, boxes,
large parcels or other kind of freight shall be taken to or from the
Demised Premises or allowed in any elevator, hall or corridor except at
times allowed by Landlord. Tenant shall make prior arrangements with
Landlord for use of freight elevator for the purpose of transporting
such articles and such articles may be taken in or out of said Building
only between or during such hours as may be arranged with and designated
by Landlord. The persons employed to move the same must be approved by
Landlord. In no event shall any weight be placed upon any floor by
Tenant so as to exceed the design conditions of the floors at the
applicable locations.
8. Tenant shall not cause or permit any gases, liquids or odors to be
produced upon or permeate from the Demised Premises, and no flammable,
combustible or explosive fluid, chemical or substance, except those
substances normally, customarily and legally used in connection with
general office operations, shall be brought into the Building.
9. During a period other than Sole Tenancy Period, (i) every person,
including Tenant, its employees and visitors, entering and leaving the
Building may be questioned by a watchman as to that person's business
therein and may be required to sign such person's name on a form
provided by Landlord for registering such person; provided that, except
for emergencies or other extraordinary circumstances, such procedures
shall not be required between the hours of 7:00 a.m. and 6:00 p.m., on
all days except Saturdays, Sundays and Holidays, (ii) Landlord may also
implement a card access security system to control access during such
other times, (iii) Landlord shall not be liable for excluding any person
from the Building
-2-
during such other times, or for admission of any person to the Building at
any time, or for damages or loss for theft resulting there from to any
person, including Tenant. Notwithstanding the foregoing, Landlord
shall not have any oblig ation to imple ment any such security
procedures in the Building. Tenant, its permitted subtenants and their
employees, invitees, licensees and guests, shall have access to the
Building and Demised Premises at all times, 24 hours per day, every day
of the year, subject to casualty and condemnation.
10. If Tenant elects to provide its own cleaning service, Landlord shall
have the right to approve of such service, which approval will not be
unreasonably withheld or delayed. When Landlord provides cleaning
service, such service will not be furnished on nights when rooms are
occupied after 6:30 p.m., unless, by agreement in writing, service is
extended to a later hour for specifically designated rooms. Landlord
shall not be responsible for any loss, theft, mysterious disappearance
of or damage to, any property, unless occurring as a result of or in
connection with Landlord's gross negligence or willful misconduct.
11. No connection shall be made to the electric wires or gas or electric
fixtures, without the consent in writing on each occasion of Landlord,
which consent shall not be unreasonably withheld, conditioned or
delayed. All glass, locks and trimmings in or upon the doors and
windows of the Demised Premises shall be kept whole and in good repair.
Tenant shall not injure, overload or deface the Building, the woodwork
or the walls of the Demised Premises, nor permit upon the Demised
Premises any noisome, noxious, noisy or offensive business.
12. If Tenant requires wiring, no outside wiring men shall be allowed to do
work of this kind unless by the written permission of Landlord or its
representatives, such written permission not to be unreasonably withheld
or delayed. If telegraph or telephonic service is desired, the wiring
for same shall be approved by Landlord, and no boring or cutting for
wiring shall be done unless approved by Landlord or its representatives,
as stated, which approval shall not be unreasonably withheld or delayed.
13. Tenant and its employees and invitees shall observe and obey all parking
and traffic regulations as imposed by Landlord. All vehicles shall be
parked only in areas designated therefor by Landlord.
14. Canvassing, peddling, soliciting and distribution of handbills or any
other written materials in the Building are prohibited, and Tenant shall
cooperate to prevent the same.
15. Landlord shall have the right to change the name of the Building, but
only during periods other than the Sole Tenancy Period and to change the
street address of the Building, provided that in the case of a change in
the street address, Landlord shall give Tenant not less than 180 days'
prior notice of the change, unless the change is required by
governmental authority.
-3-
16. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular lessee, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other lessee, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the other lessees of
the Building.
17. These Rules and Regulations are supplemental to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any premises in the
Building.
18. Landlord reserves the right to make such other and reasonable Rules and
Regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building, the Land and Wildwood
Office Park, and for the preservation of good order therein.
-4-
EXHIBIT "A"
LEGAL DESCRIPTION
All that tract of land lying and being in Land Xxx 0000 xxx 0000, 00xx Xxxxxxxx,
0xx Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx, and being described as follows:
Commence at the intersection of the southeast corner of Land Lot 940, the
northeast corner of Land Lot 941, the southwest corner of Land Lot 987 and the
northwest corner of Land Xxx 000, xxxx Xxxxxxxx and Section, thence,
northwesterly, along the north Land Lot Line of said Land Xxx 000, Xxxxx 00
degrees 36 minutes 00 seconds West, a distance of 527.94 feet to a point;
thence, leaving said Land Xxx Xxxx, Xxxxx 00 degrees 36 minutes 00 seconds East,
a distance of 730.00 feet to a point, said point being located on the north
right-of-way of Xxxxx Xxxx Road; thence, South 07 degrees 01 minute 30 seconds
East, a distance of 119.65 feet to a point, said point being located on the
south right-of-way of said Xxxxx Xxxx Road; thence, northwesterly, along said
Xxxxx Xxxx Road right-of-way, North 88 degrees 33 minutes 25 seconds West, a
distance of 6.24 feet to a point; thence, along an arc of curve to the left
(which has a radius of 575.00 feet and a chord distance of 239.92 feet, along a
bearing of South 79 degrees 24 minutes 05 seconds West), an arc distance of
241.70 feet to a point; thence, South 67 degrees 21 minutes 30 seconds West, a
distance of 177.79 feet to a point, said point being the intersection of said
right-of-way and the northeast right-of-way of Powers Ferry Road, having a
varying right-of-way; thence, southeasterly, along said Powers Ferry Road
right-of-way, South 24 degrees 26 minutes 42 seconds West, a distance of 26.14
feet to a point; thence, along an arc of curve to the left (which has a radius
of 730.00 feet and a chord distance of 337.27 feet, along a bearing of South 52
degrees 50 minutes 42 seconds East), an arc distance of 340.34 feet to a point;
thence, along an arc of curve to the left (which has a radius of 8,034.00 feet
and a chord distance of 347.28 feet, along a bearing of South 64 degrees 58
minutes 00 seconds East), an arc distance of 347.31 feet to a point; thence,
South 65 degrees 29 minutes 16 seconds East, a distance of 211.30 feet to a
point; thence, South 63 degrees 11 minutes 16 seconds East, a distance of 189.28
feet to a point; thence, South 63 degrees 02 minutes 00 seconds East, a distance
of 46.56 feet to a point; thence, South 61 degrees 34 minutes 40 seconds East, a
distance of 7.23 feet to a point; thence, South 61 degrees 34 minutes 40 seconds
East, a distance of 232.82 feet to a point; thence, along an arc of curve to the
left (which has a radius of 5,516.00 feet and a chord distance of 149.99 feet,
along a bearing of South 61 degrees 52 minutes 52 seconds East), an arc distance
of 150.00 feet to a point; thence, North 74 degrees 53 minutes 44 seconds East,
a distance of 35.89
1 of 2
feet to a point, said point being the intersection of said Powers Ferry Road
right-of-way and the northwest right-of-way of Windy Ridge Parkway, having a
varying right-of-way; thence, leaving said Powers Ferry Road right-of-way,
northeasterly, along said Xxxxx Xxxxx Xxxxxxx, Xxxxx 00 degrees 46 minutes 00
seconds East, a distance of 98.57 feet to a point; thence, along an arc of curve
to the right (which has a radius of 139.00 feet and a chord distance of 191.66
feet, along a bearing of North 74 degrees 21 minutes 00 seconds East), an arc
distance of 211.47 feet to a point; thence, South 62 degrees 04 minutes 00
seconds East, a distance of 87.00 feet to a point; thence, along an arc of curve
to the left (which has a radius of 301.00 feet and a chord distance of 389.37
feet, along a bearing of North 77 degrees 38 minutes 00 seconds East), an arc
distance of 423.43 feet to a point; thence, North 37 degrees 20 minutes 00
seconds East, a distance of 67.69 feet to a point; thence, along an arc of curve
to the right (which has a radius of 274.00 feet and a chord distance of 324.28
feet, along a bearing of North 73 degrees 36 minutes 56 seconds East), an arc
distance of 347.01 feet to a point, and THE TRUE POINT OF BEGINNING. Thence,
leaving said Windy Ridge Parkway right-of-way, North 35 degrees 01 minutes 18
seconds East, a distance of 310.20 feet to a point; thence, North 76 degrees 58
minutes 30 seconds East, a distance of 500.00 feet to a point; thence, South 41
degrees 57 minutes 00 seconds East, a distance of 340.20 feet to a point;
thence, South 58 degrees 58 minutes 30 seconds East, a distance of 289.80 feet
to a point; thence, South 71 degrees 00 minutes 00 seconds West, a distance of
199.90 feet to a point; thence, South 45 degrees 02 minutes 00 seconds West, a
distance of 223.00 feet to a point; thence, North 32 degrees 16 minutes 21
seconds West, a distance of 145.00 feet to a point; thence, South 57 degrees 43
minutes 39 seconds West, a distance of 217.00 feet to a point; thence, North 83
degrees 54 minutes 18 seconds West, a distance of 61.50 feet to a point; thence,
South 59 degrees 43 minutes 39 seconds West, a distance of 277.84 feet to a
point; thence, North 75 degrees 58 minutes 00 seconds West, a distance of 72.02
feet to a point; said point being located on the southeast right-of-way of the
aforementioned Windy Ridge Parkway; thence, North 13 degrees 20 minutes 29
seconds East, a distance of 48.10 feet to a point; thence, along an arc of curve
to the left (which has a radius of 274.00 feet and a chord distance of 364.70
feet, along a bearing of North 28 degrees 22 minutes 51 seconds West), an arc
distance of 399.05 feet to a point, and THE TRUE POINT OF BEGINNING.
Said tract of land containing 453,843 square feet, or 10.419 acres, more or
less, as shown on a survey for Wildwood Associates, prepared by Engineering &
Inspection Systems, Inc., dated April 21, 1993.
2 of 2
EXHIBIT "A"
(continued)
[GRAPHICS]
[Plat of 0000 Xxxxx Xxxxx Xxxxxxx]
EXHIBIT "B"
INITIAL DEMISED PREMISES
BASEMENT LEVEL
(Crosshatched)
[GRAPHIC]
[Drawing of Initial Demised Premises Basement Level]
EXHIBIT "B"
INITIAL DEMISED PREMISES
2ND FLOOR
(Crosshatched)
[GRAPHIC]
[Drawing of Initial Demised Premises 2nd Floor]
EXHIBIT "B"
INITIAL DEMISED PREMISES
3RD FLOOR
(Crosshatched)
[GRAPHIC]
[Drawing of Initial Demised Premises 3rd Floor]
EXHIBIT "B"
INITIAL DEMISED PREMISES
5TH FLOOR
(Crosshatched)
[GRAPHICS]
[Drawing of Initial Demised Premises 5th Floor]
EXHIBIT "B-1"
4TH FLOOR
SOUTH HALF
First Expansion Space
(Crosshatched)
[GRAPHIC]
[Drawing of 4th Floor South Half First Expansion Space]
EXHIBIT "B-2"
4TH FLOOR
NORTH HALF
Second Expansion Space
(Crosshatched)
[GRAPHIC]
[Drawing of 4th Floor North Half Second Expansion Space]
EXHIBIT "B-3"
1ST FLOOR
Third Expansion Space
(Crosshatched)
[GRAPHIC]
[Drawing of 1st Floor Third Expansion Space]
EXHIBIT "C"
SUPPLEMENTAL NOTICE
Re: Lease dated as of_________________, 199__, by and between
COUSINS PROPERTIES INCORPORATED, as Landlord, and THE SYSTEM WORKS,
INC., as Tenant.
Dear Sirs:
Pursuant to Article 3 of the captioned Lease, please be advised as follows:
1. The Rental Commencement Date is the__________day of______________,
199__, and the expiration date of the Lease Term is the________day of
________, _____, subject however to the terms and provisions of the Lease.
2. Terms denoted herein by initial capitalization shall have the meanings
ascribed thereto in the Lease.
"LANDLORD":
COUSINS PROPERTIES INCORPORATED,
a Georgia corporation
By:
---------------------------------------
Its:
---------------------------------------
(CORPORATE SEAL)
EXHIBIT "D"
CONSTRUCTION WORK
1. The construction work to be undertaken prior to the occupancy shall be
coordinated by Landlord. The provisions of EXHIBIT "D-1" shall
pertain to and govern this work. If Landlord is not deemed to have
substantially completed the work for the Demised Premises as described
in EXHIBIT "D-1" on or before February 1, 1994, Landlord shall
reimburse Tenant on a day to day basis for any increase in Tenant's
existing monthly rental payments under that certain Lease dated
_____________ between The System Works, Inc. and ____________ for
periods from and after February 1, 1994 until the earlier of the date
the Demised Premises are deemed substantially complete and July 1,
1994, provided that such increase shall not exceed $300.00 per day.
In addition, if the Demised Premises are not deemed substantially
complete by July 1, 1994, Tenant may either (i) terminate this Lease
by written notice to Landlord no later than August 1, 1994 or (ii)
elect to complete the improvements pursuant to Tenant's Plans, with
such work being governed by the provisions of EXHIBIT "D-2." The
February 1, 1994 date above or the July 1, 1994 date above shall be
extended on a day for day basis for each day of force majeure delay as
defined in Article 39.
2. Tenant has the right to elect to coordinate all of the construction
work for the Expansion Space, the First Offer Space, and, in the event
Tenant exercises its renewal rights as set forth in paragraph 5 of
EXHIBIT "G", the construction work related to the renewal. If Tenant
elects to have Landlord coordinate any such work, the provisions of
EXHIBIT "D-1" shall pertain to and govern said work. If Tenant elects
to coordinate any of the three construction projects, the provisions of
EXHIBIT "D-2" shall pertain and govern said work. In such case all
references in EXHIBIT "D-2" to the "work described in Paragraphs 2 and
4 hereof" shall be deemed to be references to the applicable Expansion
Space work, or the First Offer Space work or the renewal work, as the
case may be.
EXHIBIT "D-1"
LANDLORD'S CONSTRUCTION
1. Landlord, at Landlord's sole cost and expense, has prepared and Tenant
acknowledges receipt of drawings showing the Building's interior
layout as it presently exists.
2. Tenant, at Tenant's sole cost and expense, shall cause to be prepared
by an architect and/or designer and/or engineer approved by Landlord
the following:
(a) Any additional modification requested by Tenant to the existing
schematic partition plan described in Paragraph 1 above;
(b) Complete, finished, detailed architectural drawings and
specifications for Tenant's partition layout, reflected ceiling
and other installations for the work to be done by Landlord under
Paragraphs 3 and 4 hereof;
(c) Complete mechanical and electrical plans and specifications where
necessary for installation of air conditioning system and
ductwork, heating, electrical, plumbing and other mechanical
plans for the work to be done by Landlord under Paragraphs 3 and
4 hereof; and
(d) Any subsequent modifications to the drawings and specifications
requested by Tenant.
All such plans and specifications are expressly subject to Landlord's
approval and shall comply with all applicable laws, rules and regulations.
Tenant covenants and agrees to cause three sets of said plans and
specifications to be delivered to Landlord as soon as reasonably possible
and as soon as completed, but in no event later than September 1, 1993 and,
upon approval by Landlord, Landlord will cause said plans to be filed at
Tenant's sole cost and expense with the appropriate governmental agencies
in such form (building notice, alteration or other form) as Landlord may
direct. The final, approved plans and specifications are referred to in
this Lease as "Tenant's Plans". The Demised Premises shall be deemed
"substantially complete" when Landlord has completed the work described in
Paragraphs 3 and 4 substantially in accordance with Tenant's Plans (except
for minor punchlist items that don't materially, adversely affect Tenant's
occupancy) and has obtained a certificate of occupancy, if required, for
the Demised Premises, as such date is accelerated for each day of Tenant
Delay. In the event of any dispute as to when construction of the
improvements for the Demised Premises is substantially complete as
aforesaid, the determination of Landlord's architect or designer shall be
final and binding upon the parties. Landlord will
-1-
give Tenant ten (10) days' advance written notice of the date on which
Landlord expects the Demised Premises to be substantially complete.
3. Landlord agrees, at its sole expense and without charge to Tenant, to
supply and install the following work in the Demised Premises (the
following describes the scope of the "building standard" work which
will be provided by Landlord at its expense in accordance with the
specifications for the Building):
(a) The existing air conditioning system in its current, "as is"
condition, including existing diffusers and returns, which system
is capable of maintaining 78 degrees F when outside temperature
is 92 degrees F and 72 degrees F when outside temperature is 17
degrees F. Air conditioning design basis is 3.5 xxxxx per
usable square foot lighting and power load, based upon an
occupancy rate of one (1) person per 100 rentable square feet
and venetian blinds drawn with slats tilted against the sun at
not less than 45 degrees from horizontal;
(b) Clean building exterior, including windows, prior to the
commenceme nt of Tenant's occupancy; and
(c) Removal of all visible evidence of the previous tenant's name,
initials and logo from all common areas.
4. Landlord agrees, at Landlord's sole cost and expense but only up to the
amount of the Construction Allowance and, thereafter, at Tenant's sole
cost and expense, to construct the improvements to the Demised Premises
which are shown in Tenant's Plans. Landlord shall cause such
construction to be performed in a good, first-class, workmanlike
manner, in accordance with Tenant's Plans. Landlord shall use all
reasonable efforts to substantially complete such construction no
later than November 1, 1993.
5. Prior to commencing any work, Landlord or Landlord's contractor will
submit to Tenant written estimates of the cost of the work described
in Paragraphs 2 and 4 hereof. If Tenant shall fail to approve any such
estimate within one (1) week, the same shall be deemed disapproved in
all respects by Tenant and Landlord shall not be authorized to proceed
thereon.
6. Tenant agrees to pay Landlord within ten (10) business days of being
billed therefor fifty percent (50%) of the difference between the cost
of the work described in Paragraphs 2 and 4 hereof, less the amount of
the Construction Allowance, if any, stated in Article 1(1) of the
Lease. Tenant agrees to pay the remaining fifty percent (50%) of such
difference when the Demised Premises are deemed substantially complete.
Tenant agrees that the failure to pay any such amount, as and when due,
shall constitute a default under this Lease. Landlord shall (in
addition to all other remedies) have the same rights as in the event of
default of payment of Base Rental. Tenant further agrees to pay to
Landlord or Landlord's designated
-2-
agent, a fee for construction coordination in an amount equal to 5% of
the cost of the work described in Paragraphs 2 and 4 hereof (Landlord
hereby agrees that it will not hire a general contractor to perform
such work and accordingly there will be no additional general
contractor's fee but there will be customary fees for the contractor
used by Landlord for each trade discipline payable to each such
contractor). The failure to pay such fee promptly after being billed
therefore shall constitute a default under this Lease. If the cost
estimate approved by Tenant pursuant to Paragraph 5 above is for an
amount in excess of the Construction Allowance, Landlord shall have
the right to require Tenant to pay 50% of such excess prior to
Landlord's commencing the construction work. If the cost of the
construction pursuant to Tenant's Plans is less than the Construction
Allowance the shortfall shall be retained by Landlord and Tenant shall
have no right whatsoever to such shortfall.
7. The term "Tenant Delay," as used throughout this Lease, shall mean each
day by which (a) Tenant shall fail to furnish approved plans and
specifications in accordance with Paragraph 2 hereof, or (b) Landlord
shall be delayed in substantially completing Landlord's construction
as a result of:
(i) Tenant's request for materials, finishes or installations
other than Landlord's standard; or
(ii) Tenant's changes in the approved Tenant's Plans; or
(iii)The performance of work by a person, firm or
corporation employed by Tenant and delays in the completion
of said work by said person, firm or corporation; or
(iv) Tenant's request in Tenant's plans for work other than
painting, wallcovering, recarpeting, installation and
relocation of Landlord's standard lighting, installation
and updating building wiring to accommodate Tenant's
computers and telephones and relocation of an insubstantial
amount of wall partitions.
The date on which the improvement being constructed by Landlord in the
Demised Premises are deemed substantially complete shall be
accelerated on a day for day basis for each day of Tenant Delay.
Landlord shall notify Tenant within ten (10) business days of the
commencement of a Tenant Delay.
8. Tenant shall not make any alterations, additions or improvements in or
to the Demised Premises without Landlord's prior written consent,
except as set forth in Article 14. Except for construction as
provided in Paragraphs 3 and 4 hereof, and except for the work
described in Exhibit "G", paragraphs 12 and 13, the Demised Premises
are delivered to Tenant "as is" without any warranty or representation
whatsoever. Any alterations, additions or improvements requested by
Tenant and approved by Landlord shall be performed (i) by Landlord's
contractor or another contractor approved by Landlord, (ii) in a good
and
-3-
workmanlike manner, and (iii) in accordance with all applicable laws,
ordinances, rules and regulations of governmental
authorities havingjurisdiction over the Demised Premises.
9. 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 including Tenant's Plans 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.
EXHIBIT "D-2"
TENANT'S CONSTRUCTION
1. Landlord, at Landlord's sole cost and expense, has prepared and Tenant
acknowledges receipt of drawings showing the Building's interior layout as
it presently exists.
2. Tenant, at Tenant's sole cost and expense, shall cause to be prepared by an
architect and/or designer and/or engineer approved by Landlord the
following:
(a) Any additional modification requested by Tenant to the existing
schematic partition plan described in Paragraph 1 above;
(b) Complete, finished, detailed architectural drawings and specifications
for Tenant's partition layout, reflected ceiling and other
installations for the work to be done under Paragraph 4 hereof;
(c) Complete mechanical and electrical plans and specifications where
necessary for installation of air conditioning system and ductwork,
heating, electrical, plumbing and other mechanical plans for the work
to be done under Paragraph 4 hereof; and
(d) Any subsequent modifications to the drawings and specifications
requested by Tenant.
All such plans and specifications are expressly subject to Landlord's
approval and shall comply with all applicable laws, rules and regulations.
Tenant covenants and agrees to cause three sets of said plans and
specifications to be delivered to Landlord at the times specified in
Exhibit "G" hereof. At the time of submission of its plans and
specifications, Tenant shall also submit to Landlord a list of contractors
it desires to use for the work to be done in the Demised Premises, as well
as a description of each contractor's work or materials to be supplied.
Landlord shall have the right to approve of Tenant's contractors, which
approval shall not be unreasonably withheld, conditioned or delayed.
Landlord shall approve or disapprove of said plans and specifications and
said contractors within fifteen (15) days of receipt of the complete set of
plans and specifications. Upon approval by Landlord, Tenant will cause
said plans and specifications to be filed at Tenant's sole cost and expense
with the appropriate governmental agencies in such form (building notice,
alteration or other form) as may be required. The final, approved plans
and specifications are referred to in this Lease as "Tenant's Plans". The
Demised Premises shall be deemed "substantially complete" when Tenant has
completed the work described in Paragraphs 2 and 4 substantially in
accordance with Tenant's Plans (except for minor punchlist items that don't
materially, adversely Tenant's occupancy) and has obtained a certificate of
occupancy, if required, for the Demised Premises.
3. [Not used]
4. Tenant agrees, at Tenant's sole cost and expense (subject to Landlord's
obligation to pay the Construction Allowance described in Exhibit "G"
hereof at the times and in the manner provided in Paragraph 8 of this
EXHIBIT "D") to construct the improvements to the Demised Premises which
are shown in Tenant's Plans. Tenant shall cause such construction to be
performed in a good, first-class, workmanlike manner, in accordance with
Tenant's Plans using only contractors approved in advance by Landlord.
5. Prior to commencing any work, Tenant must provide to Landlord the
following:
(a) An insurance certificate evidencing (i) builder's risk coverage for
materials to be brought onto the Demised Premises and (ii) all Tenant
insurance required to be carried under Article 17 of the Lease;
(b) Insurance certificates from each of Tenant's contractors evidencing:
(i) Worker's compensation insurance for all of contractor's
employees;
(ii) Comprehensive general liability insurance, owner's &
contractor's protective liability insurance and
products/completed operation liability coverage with minimum
limits of $1,000,000 for each accident and $1,000,000 aggregate,
with such insurance providing broad form comprehensive general
liability endorsement, including "XCU" coverage;
(iii) Comprehensive automobile liability insurance for all owned,
nonowned and hired vehicles with minimum limit of $1,000,000
bodily injury and property damage combined; and
(iv) Umbrella for excess liability insurance with limit of $1,000,000
bodily injury and property damage combined.
(c) A work schedule showing start dates for all work and completion dates;
and
(d) A schedule reflecting the cost of the work to be done under Paragraphs
2 and 4 hereof, including contract amounts and estimates for items not
yet under contract.
6. Landlord shall have the right to inspect Tenant's work at any time and
shall have the right to terminate the work if it does not substantially
comply with Tenant's Plans or if Tenant is not otherwise in compliance with
the terms of the Lease, including this Exhibit "D". Tenant shall keep
Landlord apprised of the status of the work and shall notify Landlord of
the occurrence of critical events and milestones identified by Landlord.
- 2 -
7. Tenant shall pay for all work done and all materials supplied in connection
with the work described in Paragraphs 2 and 4 hereof as and when due and
shall not permit any liens to attach to Project. Within fifteen (15) days
after the end of each month following commencement of Tenant's work, Tenant
will submit to Landlord:
(a) Fully executed and notarized lien waivers and affidavits, in form
satisfactory to Landlord and in compliance with Georgia law, from each
contractor who has performed any work described in Paragraphs 2 and 4
hereof and from each supplier who has supplied materials in connection
with the work described in Paragraphs 2 and 4 hereof, which lien
waivers and affidavits (i) state that such party has been paid in full
for work done and materials supplied through the end of the prior
calendar month, (ii) state that such party waives all lien rights and
other claims against owner, through the date of the last payment and
(iii) make such other statements as are reasonably required by
Landlord;
(b) A schedule of costs incurred for the work described in Paragraphs 2
and 4 hereof and of estimated costs to complete;
(c) Copies of all invoices for the cost of work materials incurred as of
the end of the prior month.
(d) Copies of all required building permits, governmental approvals and
licenses.
8. (a) Within thirty (30) days after the end of each calendar month after the
commencement of the work described in Paragraphs 2 and 4 hereof,
Landlord shall pay an amount to Tenant such that the total of all
amounts paid to Tenant under this Paragraph 8(a) for all calendar
months equals: 90% of the amount which equals the positive
difference, if any, between (i) the total costs incurred as of the end
of the prior calendar month for the work done pursuant to Paragraphs 2
and 4 hereof and (ii) the positive difference, if any, between
Landlord's good faith estimate of the total cost to complete the work
described in Paragraphs 2 and 4 hereof and the amount of the
Construction Allowance for such work; provided, however, that such
amount currently payable under this Paragraph 8(a) shall be paid if
and only if all of the following conditions are met:
(i) All items required to be delivered to Landlord under Paragraph 7
hereof have been delivered;
(ii) There are no liens against the Project or claims related to or
arising from the work described in Paragraphs 2 and 4 hereof
outstanding at such time;
(iii) No event of default under the Lease has occurred which has not
been cured in a manner accepted by Landlord; and
- 3 -
(iv) All work described in Paragraphs 2 and 4 hereof has been done in
substantial accordance with Tenant's plans and in strict
accordance with all relevant building codes and governmental
regulations.
(b) Within thirty (30) days of substantial completion of the work
described in Paragraphs 2 and 4 hereof, Landlord shall pay to Tenant
an amount equal to the positive difference, if any, between (A) the
lesser of the Construction Allowance for the work described in
Paragraphs 2 and 4 hereof and the total actual cost of such work and
(B) the sum of the amounts previously paid to Tenant under Paragraph
8(a); provided, however, that such amount shall be paid if and only if
all of the following conditions are met:
(i) All items described in Paragraph 7, for the period through the
completion of the work described in Paragraphs 2 and 4 hereof,
have been delivered to Landlord along with a final contractor's
affidavit, in form reasonably satisfactory to Landlord and in
compliance with Georgia law;
(ii) there are no liens against the Project or claims related to or
arising from the work described in Paragraphs 2 and 4 hereof
outstanding at such time;
(iii) No event of default under the Lease has occurred which has not
been cured in a manner accepted by Landlord; and
(iv) All work described in Paragraphs 2 and 4 hereof has been done
substantially in accordance with Tenant's Plans and in strict
adherence to all relevant building codes and governmental
regulations.
(v) The work described in Paragraphs 2 and 4 hereof has been
substantially completed;
(vi) Tenant has obtained all required governmental approvals of the
work, including any required certificates of occupancy.
9. Tenant shall pay to Landlord a construction coordination fee equal to 3% of
the actual cost of the work described in Paragraphs 2 and 4 hereof.
Landlord shall be entitled to withhold such fee from the payments of the
Construction Allowance as set forth in Paragraph 8 hereof.
10. Tenant shall not make any alterations, additions or improvements in or to
the Demised Premises without Landlord's prior written consent, except as
set forth in Article 14. Except for construction as provided in Paragraph
3 hereof, and except for the work described in Exhibit "G", paragraphs 12
and 13, the Demised Premises are delivered to Tenant "as is"
- 4 -
without any warranty or representation whatsoever. Any alterations,
additions or improvements requested by Tenant and approved by Landlord
shall be performed (i) by Landlord's contractor or another contractor
approved by Landlord, (ii) in a good and workmanlike manner, and (iii) in
accordance with all applicable laws, ordinances, rules and regulations of
governmental authorities having jurisdiction over the Demised Premises.
11. 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 including Tenant's Plans 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.
- 5 -
EXHIBIT "E"
BUILDING STANDARD SERVICES
Landlord shall furnish the following services to Tenant during the Lease
Term (the "Building Standard Services"):
(a) Hot and cold domestic water and common-use restrooms and toilets at
locations provided for general use and as reasonably deemed by Landlord to be in
keeping with the first-class standards of the Building.
(b) Subject to curtailment as required by governmental laws, rules or
mandatory regulations and subject to the design conditions set forth in
paragraph 3(a) of EXHIBIT "D-1" attached hereto, central heat and air
conditioning in season, at such temperatures and in such amounts as are
reasonably deemed by Landlord to be in keeping with the first-class standards of
the Building. Such heating and air conditioning shall be furnished between
7:00 a.m. and 7:00 p.m. on weekdays (from Monday through Friday, inclusive) and
between 8:00 a.m. and 1:00 p.m. on Saturdays, all exclusive of Holidays, as
defined below (the "Building Operating Hours"). Upon the timely request of
Tenant, Landlord shall provide heating and air conditioning service to the
Demised Premises at hours other than Building Operating Hours, provided,
however, that Landlord shall not be required to operate the Building systems for
periods of time or in a manner that is contrary to the manufacturer's
recommendations or guidelines. A request by Tenant shall be deemed timely if
(i) with respect to operation after Building Operating Hours on a business day,
such notice is delivered by noon of such day and (ii) with respect to operation
on a day other than a business day or operation on a business day before
Building Operating Hours, such notice is delivered by noon of the last business
day before such day. During the Sole Tenancy Period, the costs of such
operation shall be included in Operating Expenses and no separate charges shall
be assessed to Tenant. During periods other than the Sole Tenancy period,
Tenant agrees that in the event it shall request and utilize such service during
hours other than Building Operating Hours, it shall pay to Landlord, as
Additional Rent, the cost to Landlord of providing such service. Landlord
agrees that if such charges were applicable in 1993, the amount of charge to
Tenant for such service would be $25.00 per hour for the initial floor and $5.00
per hour for each additional floor. In the event any portion of the Demised
Premises requires twenty-four (24) hour air conditioning or heating service
during a period other than the Sole Tenancy Period, that portion of the Demised
Premises shall be separately metered, at Tenant's cost, and Tenant shall pay
said amount directly to the Landlord. Landlord and Tenant acknowledge that the
current cost of providing such after hours heating and air conditioning service
is subject to adjustment to reflect increased utility costs, but in no event
shall Landlord increase such rates to reflect profit, allocation of overhead or
administrative charges.
(c) Electric lighting service for all public areas and special service
areas of the Building in the manner and to the extent reasonably deemed by
Landlord to be in keeping with the first-class standards of the Building.
(d) Except during periods in which Tenant elects to provide janitor
services, janitor service shall be provided by Landlord five (5) days per week,
exclusive of Holidays (as hereinbelow defined), in a manner that Landlord
reasonably deems to be consistent with the first-class standards of the
Building.
(e) Except during periods when Tenant provides security under paragraph 8
of EXHIBIT "G", security services for the Building comparable as to coverage,
control and responsiveness (but not necessarily as to means for accomplishing
same) to other similarly situated first-class, multi-tenant office buildings in
suburban Atlanta, Georgia; provided, however, Landlord shall have no
responsibility to prevent, and shall not be liable to Tenant for, any liability
or loss to Tenant, its agents, employees and visitors arising out of losses due
to theft, burglary, or damage or injury to persons or property caused by persons
gaining access to the Demised Premises, and Tenant hereby releases Landlord from
all liability for such losses, damages or injury unless caused by Landlord's
gross negligence or willful misconduct and provided further that Landlord shall
not be obligated to improve any security services or comply with the first-class
building standard set forth the above if Tenant has rejected a request by
Landlord to make a capital change for safety purposes during the Sole Tenancy
Period which has been rejected by Tenant.
(f) Sufficient electrical capacity to operate (i) incandescent lights,
typewriters, calculating machines, photocopying machines and other machines of
the same low voltage electrical consumption (120/208 volts), provided that the
total rated electrical design load for said lighting and machines of low
electrical voltage shall not exceed 3.5 xxxxx per square foot of rentable area;
and (ii) lighting (277/480 volts), provided that the total rated electrical
design load for said lighting shall not exceed 2.0 xxxxx per square foot of
rentable area (each such rated electrical design load to be hereinafter referred
to as the "Building Standard Rated Electrical Design Load").
Should Tenant's total rated electrical design load exceed the Building
Standard Rated Electrical Design Load for either low or high voltage electrical
consumption, or if Tenant's electrical design requires low voltage or high
voltage circuits in excess of Tenant's share of the Building Standard circuits,
Landlord will (at Tenant's expense) install such additional circuits and
associated high voltage panels and/or additional low voltage panels with
associated transformers (which additional circuits, panels and transformers
shall be hereinafter referred to as the "Additional Electrical Equipment"). If
the Additional Electrical Equipment is installed because Tenant's low or high
voltage rated electrical design load exceeds the applicable Building Standard
Rated Electrical Design Load, then a meter shall also be added (at Tenant's
expense) to measure the electricity used through the Additional Electrical
Equipment.
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.
Tenant shall also pay on demand the actual metered cost of electricity consumed
through the Additional Electrical Equipment (if applicable), plus any actual
accounting expenses incurred by Landlord in connection with the metering
thereof.
- 2 -
Tenant agrees that if Tenant uses data processing or other electronic
equipment which incorporates the use of switched mode power supplies or any
other type device causing harmonic distortion on Landlord's power distribution
system, Tenant shall install filters at Tenant's cost to eliminate the harmonic
distortion. In addition, any damage to Landlord's equipment resulting from
harmonic distortion caused by Tenant's electronic equipment shall be repaired at
Tenant's expense. Total harmonic distortion shall not exceed thirteen percent
(13%).
If any of Tenant's electrical equipment requires conditioned air in excess
of Building Standard air conditioning, the same shall be installed by Landlord
(on Tenant's behalf), and Tenant shall pay all design, installation, metering
and operating costs relating thereto.
If Tenant requires that certain areas within Tenant's Demised Premises must
operate in excess of the normal Building Operating Hours (as hereinabove
defined), the electrical service to such areas shall be separately circuited and
metered (at Tenant's expense) such that Tenant shall be billed the costs
associated with electricity consumed during hours other than Building Operating
Hours.
(g) All Building Standard fluorescent bulb replacement in all areas and
all incandescent bulb replacement in public areas, toilet and restroom areas,
and stairwells.
(h) Non-exclusive multiple cab passenger service to the Demised Premises
during Building Operating Hours (as hereinabove defined) and at least one (1)
cab passenger service to the floor(s) on which the Demised Premises are located
twenty-four (24) hours per day and non-exclusive freight elevator service during
Building Operating Hours (all subject to temporary cessation for ordinary repair
and maintenance and during times when life safety systems override normal
building operating systems) with such freight elevator service available at
other times upon reasonable prior notice and the payment by Tenant to Landlord
of any additional expense actually incurred by Landlord in connection therewith.
To the extent the services described above require electricity and water
supplied by public utilities, Landlord's covenants thereunder shall only impose
on Landlord the obligation to use its reasonable efforts to cause the applicable
public utilities to furnish same. Except for deliberate and willful acts of
Landlord, failure by Landlord to furnish the services described herein, or any
cessation thereof, shall not render Landlord liable for damages to either person
or property, nor be construed as an eviction of Tenant, nor work an abatement of
rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof.
In addition to the foregoing, should any of the equipment or machinery, for any
cause, fail to operate, or function properly, Tenant shall have no claim for
rebate of rent or damages on account of an interruption in service occasioned
thereby or resulting therefrom; provided, however, Landlord agrees to use
reasonable efforts to promptly repair said equipment or machinery and to restore
said services during normal business hours.
- 3 -
The following dates shall constitute "Holidays" as that term is used in
this Lease: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas, and any other holiday generally recognized as such
by landlords of office space in the metropolitan Atlanta office market, as
determined by Landlord in good faith. If in the case of any specific holiday
mentioned in the preceding sentence, a different day shall be observed than the
respective day mentioned, then that day which constitutes the day observed by
national banks in Atlanta, Georgia on account of said holiday shall constitute
the Holiday under this Lease. Business days shall mean Monday through Friday
except for Holidays.
- 4 -
EXHIBIT "F"
GUARANTY
INTENTIONALLY OMITTED.
EXHIBIT "G"
SPECIAL STIPULATIONS
1. EXPANSION OPTIONS
(a) GRANT OF EXPANSION OPTIONS
Landlord does hereby grant unto Tenant the First Expansion Option, the
Second Expansion Option and the Third Expansion Option as more fully
defined herein (collectively the "Expansion Options") exercisable
subject to and in accordance with the terms and conditions of these
Special Stipulations. At Landlord's option, Tenant may not exercise
any Expansion Option if there is an event of default in the
performance of Tenant's covenants under this Lease either at the time
for exercising any of the Expansion Options or on the Rent
Commencement Date applicable thereto.
(b) PRINCIPAL DEFINITIONS
(1) FIRST EXPANSION OPTION
The "First Expansion Option" is an option to include within the
Demised Premises that area (the "First Expansion Space") shown
on Exhibit "B-1". The "First Expansion Option Exercise
Deadline" is the last day of the 20th calendar month following
the Rental Commencement Date. The "First Expansion Rentable
Floor Area" is hereby conclusively agreed by the parties to be
10,775 square feet. The "First Expansion Option Rent
Commencement Date" shall be the earlier of (i) the date of
occupancy of any portion of the First Expansion Space or (ii)
120 days following the delivery of the First Expansion Option
Exercise Notice (as defined below) to Landlord; provided,
however, if occupancy is delayed solely due to Landlord's
failure to approve or disapprove the plans and specifications
and contractors (if Tenant has elected to do the Expansion Space
Construction itself), submitted by Tenant, within ten (10) days
of Landlord's receipt thereof or, if Landlord is doing the
Expansion Space Construction, due to Landlord's failure to
promptly commence and diligently pursue to completion as soon as
reasonably possible the improvements described in Tenant's plans
and specifications (but it is clearly agreed that such 120-day
period shall not be extended even if the construction is not
substantially complete by the expiration of that period so long
as Landlord promptly commenced and diligently pursued such
construction), the "120 days" immediately above shall be
increased by the number of days of delay attributable such
failures with respect to either matter described above is
herewith referred to as "Landlord Delay"). The "Construction
Allowance" for the
1
First Expansion Space shall be equal to $4.50 (i) multiplied by
the number of whole months remaining in the 120-month Lease Term
after the First Expansion Option Rent Commencement Date, (ii)
divided by 120 and (iii) multiplied by the First Expansion
Rentable floor Area.
(2) SECOND EXPANSION OPTION
The "Second Expansion Option" is an option to include within the
Demised Premises that area (the "Second Expansion Space") shown
on Exhibit "B-2". The "Second Expansion Option Exercise
Deadline" is the last day of the 32nd month following the Rental
Commencement Date. The "Second Expansion Rentable Floor Area"
is hereby conclusively agreed by the parties to be 10,775 square
feet. The "Second Expansion Option Rent Commencement Date"
shall be the earlier of (i) the date of occupancy of any portion
of the Second Expansion Space or (ii) 120 days following the
delivery of the Second Expansion Option Exercise Notice (as
defined below) to Landlord; provided, however, if occupancy is
delayed solely due to Landlord Delay, the "120 days" immediately
above shall be increased by the number of days of delay solely
attributable to Landlord Delay. The "Construction Allowance"
for the Second Expansion Space shall be equal to $4.50 (i)
multiplied by the number of whole months remaining in the 120-
month Lease Term after the Second Expansion Option Rent
Commencement Date, (ii) divided by 120 and (iii) multiplied by
the Second Expansion Rentable Floor Area.
(3) THIRD EXPANSION OPTION
The "Third Expansion Option" is an option to include within the
Demised Premises that area (the "Third Expansion Space") shown
on Exhibit "B-3". The "Third Expansion Option Exercise Deadline"
is the last day of the 44th month following the Rental
Commencement Date. The "Third Expansion Rentable Floor Area" is
hereby conclusively agreed by the parties to be 20,416 square
feet. The "Third Expansion Option Rent Commencement Date" shall
be the earlier of (i) the date of occupancy of any portion of
the Third Expansion Space or (ii) 120 days following the
delivery of the Third Expansion Option Exercise Notice (as
defined below) to Landlord; provided, however, if occupancy is
delayed solely due to Landlord Delay, the "120 days" immediately
above shall be increased by the number of days of delay solely
attributable to Landlord Delay. The "Construction Allowance"
for the Third Expansion Space shall be equal to $4.50 (i)
multiplied by the number of whole months remaining in the
120-month Lease Term after the Third Expansion Option Rent
Commencement Date, (ii) divided by 120 and (iii) multiplied by
the Third Expansion Rentable Floor Area.
2
(c) EXERCISE OF EXPANSION OPTIONS
(1) The First Expansion Option may be exercised by Tenant only by
delivery of a written notice to Landlord ("First Expansion
Option Exercise Notice") at any time on or before the First
Expansion Option Exercise Deadline. Failure to deliver said
notice to Landlord on or before the First Expansion Option
Exercise Deadline shall terminate such First Expansion Option,
the Second Expansion Option and the Third Expansion Option.
(2) If and only if Tenant has properly exercised the First Expansion
Option, the Second Expansion Option may be exercised by Tenant
only by delivery of a written notice to Landlord ("Second
Expansion Option Exercise Notice") at any time on or before the
Second Expansion Option Exercise Deadline. Failure to deliver
said notice to Landlord on or before the Second Expansion Option
Exercise Deadline shall terminate such Second Expansion Option
and the Third Expansion Option.
(3) If and only if Tenant has properly exercised the First and
Second Expansion Options, the Third Expansion Option may be
exercised by Tenant only by delivery of a written notice to
Landlord ("Third Expansion Option Exercise Notice") at any time
on or before the Third Expansion Option Exercise Deadline.
Failure to deliver said notice to Landlord on or before the
Third Expansion Option Exercise Deadline shall terminate such
Third Expansion Option.
(4) Any exercise of an Expansion Option must be made with respect to
the entire First, Second or Third Expansion Space, as the case
may be. No attempted exercise with respect to less than all of
the respective First, Second or Third Expansion Space shall be
valid or effective.
(5) CERTAIN RENTABLE FLOOR AREA ADJUSTMENTS IN THE EVENT OF FAILURE
TO EXERCISE EXPANSION OPTIONS
(i) If the First Expansion Option terminates without Tenant
exercising such option, from and after the date of such
termination the Rentable Floor Area of Demised Premises
shall be increased for the remainder of the Lease Term by
nine (9) percent as of the date such Expansion Option
terminates.
(ii) If the Tenant exercises the First Expansion Option and
does not exercise the Second Expansion Option and such
Second Expansion Option terminates, the Rentable Floor
Area of Demised Premises (including the First Expansion
Rentable Floor Area and any First Offer Space Rentable
Floor Area) shall be increased for the
3
remainder of the Lease Term by six and one-half (6-1/2)
percent as of the date such Expansion Option terminates.
(iii) If Tenant exercises the First and Second Expansion
Options, but does not exercise the Third Expansion Option
and such Third Expansion Option terminates, the Rentable
Floor Area of Demised Premises (including the First
Expansion Rentable Floor Area and the Second Expansion
Rentable Floor Area and any First Offer Space Rentable
Floor Area) shall be increased for the remainder of the
Lease Term by four and one-half (4-1/2) percent as of the
date such Expansion Option terminates.
(iv) It is acknowledged and agreed by Tenant that the effect
of the increases in Rentable Floor Area under
subparagraphs (i), (ii) and (iii) immediately above will
be to increase Tenant's Base Rental, Tenant's Forecast
Additional Rental and Tenant's Additional Rental.
(d) EXPANSION SPACE CONSTRUCTION
(1) Tenant may elect to have Landlord coordinate the Expansion Space
Construction or Tenant may elect to coordinate such construction
itself, all as set forth in Exhibit "D". On or before sixty
(60) days after delivery of an Expansion Option Exercise Notice,
Tenant shall deliver to Landlord three (3) sets of the final
construction plans and specifications for the work to be done in
the Expansion Space, and, if Tenant is doing the Expansion Space
Construction, a list of contractors, as set forth in Exhibit
"D". Landlord shall have ten (10) days to notify Tenant of its
approval or disapproval of such plans and specifications and
contractors (if applicable), but such approval shall not be
unreasonably withheld, conditioned or delayed. Upon Landlord's
final approval of such plans and specifications, Landlord or
Tenant, as the case may be, shall promptly and diligently
construct the leasehold improvements in accordance with such
plans and specifications (subject to these Special Stipulations
and Exhibit "D").
(2) With respect to the Expansion Space work to be done pursuant to
these Special Stipulations, Landlord or Tenant, as the case may
be, shall build out the leasehold improvements in such space in
accordance with the general requirements, terms and conditions
of Exhibit "D" and the Tenant's plans and specifications
submitted to Landlord in accordance with these Special
Stipulations (except, if Landlord is coordinating the work,
Landlord shall have no obligation to perform the work described
in Paragraph 3(b) of Exhibit "D-1"). The plans and
specifications delivered by Tenant to Landlord pursuant to these
Special Stipulations shall be detailed and complete, including
all lighting and mechanical systems.
4
(3) As provided in Exhibit "D", all costs and expenses for
constructing and installing the improvements desired by Tenant
in the Expansion Space not covered by Landlord's Construction
Allowance for such Expansion Space shall be the sole
responsibility of Tenant and shall be paid by Tenant at the same
time and in the same manner provided in Exhibit "D". Tenant
agrees to pay Landlord or Landlord's designated agent
construction coordination fees in the same percentage set forth
in Exhibit "D" with respect to the Expansion Space work.
Landlord or Tenant, as the case may be, agrees to build out the
space in a workmanlike manner in compliance with all applicable
laws, ordinances and codes. If Landlord coordinates the work,
Landlord further agrees to use reasonable efforts so as to
achieve the lowest price reasonably possible through a
competitive process and quality equal to the initial leasehold
improvements of the Demised Premises, subject to reasonable
approval of Tenant.
(e) RENT FOR EXPANSION SPACE
Base Rental for Expansion Space which is leased by Tenant under an
Expansion Option shall be calculated at the same Base Rental Rate then
in effect and shall be subject to the same adjustments and at the same
time, in the same manner and in the same amount per square foot of
Rentable Floor Area as for the original portion of the Demised
Premises as provided in this Lease and Tenant shall pay Tenant's
Forecast Additional Rental and Tenant's Additional Rental at the same
time, in the same manner and in the same amount per square foot of
Rentable Floor Area as for the original portion of the Demised
Premises. Tenant shall be obligated to commence payment of Rent,
including Base Rental, Tenant's Forecast Additional Rental, and
Tenant's Additional Rental for Expansion Space on the respective
Expansion Option Rent Commencement Dates.
(f) OTHER TERMS
Except as expressly provided herein to the contrary, all Expansion
Space shall be added to the Demised Premises subject to and in
accordance with all of the terms and conditions set forth in the
Lease.
(g) FURTHER ASSURANCES
Upon the exercise of an Expansion Option pursuant to the terms hereof,
Landlord and Tenant shall execute an instrument memorializing the
Expansion Space added to this Lease thereby.
(h) LEASE TERM
5
The Lease Term for Expansion Space added to this Lease pursuant to an
Expansion Option shall terminate when the Lease Term for the initial
Demised Premises terminates.
(i) LIMITATION ON ASSIGNMENT
Tenant may not independently assign its Expansion Options, provided,
however, the Expansion Option rights provided herein shall not
terminate solely as a result of a permitted assignment of the entire
Lease.
(j) RENTABLE FLOOR AREA AND DEMISED PREMISES
As of an Expansion Option Rent Commencement Date:
(x) The Rentable Floor Area of Demised Premises for purposes of this
Lease shall be equal to the Rentable Floor Area immediately
prior to such date plus the Expansion Rentable Floor Area for
the Expansion Space upon which rent is commencing; and
(y) The Demised Premises shall include the Expansion Space upon
which rent is commencing.
2. RIGHT OF FIRST OFFER.
(a) If any Expansion Option should terminate without Tenant exercising
said option, Tenant shall have a Right of First Offer ("Right of First
Offer") with respect to unleased space in the Project, subject to the
terms and conditions set forth below.
(b) The Right of First Offer shall terminate (i) if there is an event of a
default by Tenant under the terms of this Lease and (ii) in any and
all events at the end of the eighth (8th) Lease Year. After such
time, any unleased space which is not part of the Demised Premises
shall not be subject to the Right of First Offer and may be leased by
Landlord to any party without prior notice or offer to Tenant.
(c) If Landlord in good faith desires to enter into negotiations with
specific third parties with respect to unleased space in the Building
("Unleased Space"), Landlord shall deliver to Tenant a written notice
("First Offer Notice") stating this fact. The First Offer Notice
shall also describe the space to be offered to third parties (the
"First Offer Space") and Landlord's designation of the Rentable Floor
Area of the First Offer Space ("First Offer Space Rentable Floor
Area").
(d) Tenant shall have ten (10) business days from receipt of the First
Offer Notice in which to accept the First Offer Space. If Tenant
fails to deliver a written notice within said ten (10) business day
period, which notice includes Tenant's acceptance of such space under
the terms of this Lease and subparagraph (e) below, the Right
6
of First Offer shall terminate with respect to the First Offer Space.
In such case, Landlord may lease such space to any party without prior
notice or offer to Tenant and Tenant shall have no further rights
whatsoever with respect to that particular First Offer Space.
(e) If Tenant accepts the First Offer Space by delivery of a written
notice to Landlord within ten (10) business days of receipt of the
First Offer Notice:
(i) RENTABLE FLOOR AREA AND DEMISED PREMISES
Rentable Floor Area of Demised Premises shall be increased by
the First Offer Space Rentable Floor Area as of the First Offer
Rent Commencement Date (as defined below) and the Demised
Premises shall be deemed to include the First Offer Space as of
the First Offer Rent Commencement Date.
(ii) RENT COMMENCEMENT DATE
The "First Offer Rent Commencement Date" shall be the earlier of
(x) the date of occupancy of any portion of the First Offer
Space or (y) one hundred twenty (120) days from the date Tenant
delivers written notice to Landlord accepting the First Offer
Space; provided, however, if occupancy is delayed solely due to
Landlord's failure to approve or disapprove the plans and
specifications and contractors (if Tenant has elected to do the
First Offer Space Construction itself), submitted by Tenant,
within ten (10) days of Landlord's receipt thereof or, if
Landlord is coordinating the First Offer Space Construction,
due to Landlord's failure to properly commence and diligently
pursue to completion as soon as reasonably possible, the
improvements described in Tenant's Plans (but it is clearly
agreed that such 120-day period shall not be extended even if
the construction is not substantially complete by the expiration
of that period so long as Landlord promptly commenced and
diligently pursued such construction), the "120 days"
immediately above shall be increased by the number of days of
delay attributable to such failure by Landlord (each such delay
caused by Landlord's failure with respect to either matter
described above is hereinafter referred to as "Landlord Delay").
(iii) CONSTRUCTION ALLOWANCE
The "Construction Allowance" for the First Offer Space shall be
equal to $.45 multiplied by the First Offer Space Rentable Floor
Area and further multiplied by the number of whole years or
fractions thereof, remaining in the original 120-month Lease
Term after the First Offer Rent Commencement Date.
7
(iv) FIRST OFFER SPACE CONSTRUCTION
(1) Tenant may elect to have Landlord coordinate the First
Offer Space Construction or Tenant may elect to
coordinate such construction itself, all as set forth in
Exhibit "D". On or before sixty (60) days after delivery
to Landlord of the written acceptance of the First Offer
Space, Tenant shall deliver to Landlord three (3) sets
of the final construction plans and specifications for
the work to be done in the First Offer Space, and, if
Tenant is doing the First Offer Space Construction, a
list of contractors, as set forth in Exhibit "D".
Landlord shall have ten (10) days to notify Tenant of its
approval or disapproval of such plans and specifications
and contractors, if applicable, but such approval shall
not be unreasonably withheld, conditioned or delayed.
Upon Landlord's final approval of such plans and
specifications, Landlord or Tenant, as the case may be,
shall promptly and diligently construct the leasehold
improvements in accordance with such plans and
specifications (subject to these Special Stipulations and
Exhibit "D").
(2) With respect to the First Offer space work to be done
pursuant to these Special Stipulations, Landlord or
Tenant, as the case may be, shall build out the leasehold
improvements in such space in accordance with the
general requirements, terms and conditions of Exhibit "D"
and the Tenant's plans and specifications submitted to
Landlord in accordance with these Special Stipulations
(except, if Landlord is coordinating the work, Landlord
shall have no obligation to perform that work described
in Paragraph 3 of Exhibit "D-1"). The plans and
specifications delivered by Tenant to Landlord pursuant
to these Special Stipulations shall be detailed and
complete, including all lighting and mechanical systems.
(3) As provided in Exhibit "D", all costs and expense for
constructing and installing the improvements desired by
Tenant in the First Offer Space not covered by Landlord's
Construction Allowance for the First Offer Space shall be
the sole responsibility of Tenant and shall be paid by
Tenant at the same time and in the same manner provided
in Exhibit "D". Tenant also hereby agrees to pay
Landlord or Landlord's designated agent construction
coordination fee in the percentage amount set forth in
Exhibit "D" with respect to the First Offer Space work.
Landlord or Tenant, as the case may be, agrees to build
out the space in a workmanlike manner in compliance with
all applicable laws, ordinances and codes. If Landlord
coordinates the work, Landlord further agrees to use
reasonable efforts so as to achieve the lowest price
reasonably
8
possible through a competitive process and quality equal
to the initial leasehold improvements of the Demised
Premises, subject to reasonable approval of Tenant.
(v) RENT FOR FIRST OFFER SPACE
Base Rental for First Offer Space which is leased by Tenant
under the Right of First Offer shall be calculated at the same
Base Rental Rate then in effect and shall be subject to the
same adjustments and at the same time, in the same manner and
in the same amount per square foot of Rentable Floor Area as
for the original portion of the Demised Premises as provided in
this Lease and Tenant shall pay Tenant's Forecast Additional
Rental and Tenant's Additional Rental at the same time, in the
same manner and at the same amount per square foot of Rentable
Floor Area as for the original portion of the Demised Premises.
Tenant shall be obligated to commence payment of Rent,
including Base Rental, Tenant's Forecast Additional Rental and
Tenant's Additional Rental for the First Offer Space on the
First Offer Rent Commencement Date.
(vi) OTHER TERMS
Except as expressly provided herein to the contrary, all First
Offer Space shall be added to the Demised Premises subject to
and in accordance with all of the terms and conditions set
forth in the Lease.
(vii) FURTHER ASSURANCES
Upon the exercise of a Right of First Offer pursuant to the
terms hereof, Landlord and Tenant shall execute an instrument
memorializing the First Offer Space added to this Lease
thereby.
(viii) LEASE TERM
The Lease Term for First Offer Space added to this Lease
pursuant to the Right of First Offer shall terminate when the
Lease Term for the initial Demised Premises terminates.
(ix) LIMITATION ON ASSIGNMENT
Tenant may not independently assign its Right of First Offer,
provided, however, the First Offer rights provided herein shall
be terminate solely as a result of a permitted assignment of
the entire Lease.
3. CANCELLATION OPTIONS.
9
(a) CONDITIONS
If the following conditions are met, Tenant may exercise either the
First or Second Cancellation Options (as defined below):
(i) At lease one of the following conditions exists on the
respective Cancellation Notice Date (as defined below):
(x) Tenant is moving the offices of at least 50% of its
personnel, as well as its Chief Executive Officer,
outside of the greater Atlanta Metropolitan Area; or
(y) Tenant establishes to the reasonable satisfaction of
Landlord that Tenant's management, as of the commencement
of the Lease Term, ceases to own a controlling interest
in Tenant and ceases to control the day to day business
decisions for Tenant; or
(z) Tenant's gross income for the 12 month period immediately
preceding the Cancellation Notice Date is less than
seventy percent (70%) of its gross income for the period
immediately preceding the date of this Lease and the
number of employees (including full-time and part-time
employees and independent contractors) employed by Tenant
on the respective Cancellation Notice Date is less than
seventy percent (70%) of the number (including full-time
and part-time employees and independent contractors) so
employed as of the date of this Lease; and
(ii) Tenant has paid all amounts due under the Lease as of the date
of cancellation, including, without limitation, any amounts due
to and demanded by landlord for any existing events of default
on the part of Tenant under the Lease; and
(iii) As of the respective Cancellation Notice Date, Tenant has paid
cash funds to Landlord equal to the Cancellation Charge (as
defined below), which amount is intended to compensate Landlord
for the Lease termination and which the parties hereby is a
liquidated damages amount and not a penalty, Landlord's damages
being difficult, if not impossible to calculate; and
(iv) Tenant has delivered to Landlord on or before the respective
Cancellation Notice Date, but not more than ninety (90) days
prior thereto, a written notice ("Cancellation Notice") that it
elects to exercise its cancellation rights pursuant to this
Paragraph, which notice also enumerates the conditions which
are satisfied which entitle Tenant to exercise its
cancellation rights hereunder (including the specific condition
in Paragraph
10
3(a)(i) which has occurred). Upon request of Landlord, Tenant
shall provide evidence to Landlord which reasonably establishes
that all applicable conditions to the exercise of the
cancellation rights are met.
(b) FIRST CANCELLATION OPTION
The "First Cancellation Option" is an option to cancel the Lease as of
the end of the fifth Lease Year. The "Cancellation Notice Date" for
the First Cancellation Option is the last day of the third month of
the fifth Lease Year. If all of the conditions of paragraph 3(a)
above are met for the First Cancellation Option, the Lease shall
terminate at the end of the fifth Lease Year. If any of the
conditions enumerated in paragraph 3(a) above are not satisfied,
Tenant shall have not right to exercise the First Cancellation Option
and the First Cancellation Option shall terminate.
(c) SECOND CANCELLATION OPTION
The "Second Cancellation Option" is an option to cancel the Lease as
of the end of the seventh Lease Year. The Cancellation Notice Date
for the Second Cancellation Option is the last day of the third month
of the seventh Lease Year. If all of the conditions of paragraph 3(a)
above are met for the Second Cancellation Option, the Lease shall
terminate at the end of the seventh Lease Year. If any of the
conditions enumerated in paragraph 3(a) above are not satisfied,
Tenant shall have no right to exercise the Second Cancellation Option
and the Second Cancellation Option shall terminate.
(d) OTHER DEFINITIONS
(i) The "Cancellation Charge" for the First Cancellation Option,
shall be equal to the sum of (x) an amount equal to the total
Base Rental for the fifth Lease Year, plus (y) $178,255, which
represents the unamortized Construction Allowance on the
initial construction, plus (z) for each Expansion Space, the
unamortized portion of the Construction Allowance for such
space as of the end of the fifth Lease Year which unamortized
portion shall be determined by assuming that the applicable
Construction Allowance is amortized on a straight line basis in
equal monthly payments, with interest thereon at ten percent
(10%) per annum, for the period from the Rent Commencement Date
for such space to the end of the initial 120 month Lease Term,
plus (aa) for each First Offer Space, the unamortized portion
of the Construction Allowance for such space as of the end of
the fifth Lease Year which unamortized portion shall be
determined by assuming that the applicable Construction
Allowance is amortized on a straight line basis in equal
monthly payments, with interest thereon at ten percent (10%)
per annum, for the period from the Rent Commencement Date for
such space to the end of the initial 120 month Lease Term. The
11
portion of the Cancellation Charge represented by item (x)
immediately above is in addition to the Base Rental for the
fifth Lease Year.
(ii) The "Cancellation Charge" for the Second Cancellation Option,
shall be equal to the sum of (x) an amount equal to sixty (60)
percent of the Base Rental for the seventh Lease Year, plus (y)
$117,376, which represents the unamortized Construction
Allowance on the initial construction, plus (z) for each
Expansion Space, the unamortized portion of the Construction
Allowance for such space as of the end of the seventh Lease
Year which unamortized portion shall be determined by assuming
that the applicable Construction Allowance is amortized on a
straight line basis in equal monthly payments, with interest
thereon at ten percent (10%) per annum, for the period from the
Rent Commencement Date for such space to the end of the initial
120 month Lease Term, plus (aa) for each First Offer Space,
the unamortized portion of the Construction Allowance for such
space which unamortized portion shall be determined by
assuming that the applicable Construction Allowance is
amortized on a straight line basis in equal monthly payments,
with interest thereon at ten percent (10%) per annum, for the
period from the Rent Commencement Date for such space to the
end of the initial 120 month Lease Term. The portion of the
Cancellation Charge represented by item (x) immediately above
is in addition to the Base Rental for the seventh Lease Year.
4. USE OF COMMON AREA; PARKING AREAS.
(a) If any third party tenants shall occupy any portion of the Project due
to failure of Tenant to fully exercise Expansion Option rights and/or
Right of First Offer rights, it is acknowledged and agreed that such
third party tenants shall have full access to all common areas,
including, without limitation, second floor and basement common areas.
(b)
(i) Landlord shall maintain unreserved parking facilities adjacent
to the Building for the purpose of accommodating Tenant,
Tenant's invitees and employees, and other tenants, their
invitees and employees, subject to such reasonable limitations
and conditions as from time to time are imposed by Landlord,
but at no additional charge or rent for such use due from
Tenant; provided, however, that the ratio of parking available
to Tenant shall not in such circumstances be reduced below that
ratio specified below.
(ii) Throughout the Lease Term, Tenant shall be entitled to use
parking spaces on a unreserved and nonexclusive basis, the
number of such spaces being equal to the Rentable Floor Area of
Demised Premises from time to time, divided by one thousand
(1000) and multiplied by the Parking Ratio (as defined below).
The Parking Ratio during the entire Lease Term shall be
12
equal to 3.10, provided, however, such ratio shall be adjusted
to take into account any changes in government rules and
regulations (such terms shall not be deemed to refer to
condemnation proceedings) that are effective subsequent to the
commencement of the Lease Term. Parking is available in
accordance with all applicable zoning laws, codes, rules and
regulations.
(iii) Landlord shall provide periodic motorized patrol security for
the parking area in a method and manner which is reasonable,
and not materially less than the security provided for Wildwood
Office Park. Landlord shall keep the parking area clean and
well-lighted in a reasonable and safe manner. The cost of such
security shall be included in Operating Expenses as defined in
Article 9.
(c) Tenant does hereby acknowledge that Landlord owns property adjacent to
the Land on which it may construct additional improvements. If
Landlord elects to construct such additional improvements, the parking
areas on the Project may be used in common with that property's
improvements. Tenant hereby agrees that such shared use shall be
permitted and will not be a violation of this Lease so long as Tenant
has access to a number of unassigned parking spaces on the Project
Land, which number is equal to the Parking Ratio multiplied by the
Rentable Floor Area of Demised Premises divided by one thousand (1000)
and the Operating Expenses for such parking areas are fairly allocated
between the two properties.
5. RENEWAL OPTIONS.
If there is no then existing event of default by Tenant under the terms of
this Lease, Tenant may extend the Lease Term by five (5) years ("Renewal
Term") by giving written notice to Landlord ("Renewal Notice") at least 12
months prior to the termination of the original Lease Term. If Tenant
exercises its option to renew this Lease for five (5) years, the Base
Rental Rate for the five (5) year renewal period shall be an agreed upon
amount greater than or equal to $13.00 per annum, per square foot of
Rentable Floor Area of Demised Premises but less than or equal to $16.00
per annum, per square foot of Rentable Floor Area of Demised Premises. If
Landlord and Tenant cannot agree by the end of the first month of the tenth
Lease Year on the amount of Base Rental Rate for the Renewal Term, Tenant
may give Landlord written notice by the end of the second month of the
tenth Lease Year that it accepts a Base Rental Rate of $16.00 per annum,
per square foot of Rentable Floor Area of Demises Premises. If Landlord
and Tenant do not agree on the Base Rental Rate and Tenant fails to timely
give such notice, the Renewal Option shall be deemed terminated. In the
event of the exercise of the Renewal Option, Landlord will provide a
"Construction Allowance" equal to $5.00 per square foot of Rentable Floor
Area of Demised Premises. Such Construction Allowance shall be
administered in a manner consistent with Exhibit "D" of this Lease (but
Landlord shall have no obligation to perform the work described in
Paragraph 3(b) of Exhibit "D-1") and Tenant may also receive reimbursement
from such Construction Allowance (upon presentation of valid, paid
13
invoices) for permanent leasehold improvements constructed by Tenant in the
Demised Premises at any time from and after the beginning of the eighth
Lease Year. Landlord shall not be required to undertake any work other
than work to be paid for from such Construction Allowance remaining after
the above reimbursements to Tenant or paid for by Tenant. Tenant agrees to
pay landlord's construction management fees in the same percentage amount
set forth in Exhibit "D" with respect to the renewal work. The other terms
of the Lease will remain unchanged during the Renewal Term. Tenant's
option is to renew the Lease under the terms and conditions described
herein for the entire Demised Premises, including Expansion Space and First
Offer Space. Tenant shall not have an option to renew the Lease Term only
for a portion of the Demised Premises.
6. ADDITIONAL EXPANSION.
If Tenant has exercised all Expansion Options and desires additional office
space, Landlord agrees to act in good faith to use its best efforts to
locate additional office space in Wildwood Office Park which meets the
following criteria:
(a) The location of the space and the size of the space are acceptable to
both Tenant and owner of said space;
(b) The base rental rate for said space is between $14.00 and $17.50 per
rentable square foot, with Tenant paying its pro rata share of
operating expenses;
(c) The owner provides a construction allowance of $5.00 or more per
rentable square foot; and
(d) The other terms of the applicable lease are mutually acceptable to
both Tenant and the owner of said space.
7. AUDITED FINANCIAL STATEMENTS OF TENANT.
Tenant must provide to Landlord (i) audited financial statements of Tenant
as soon as such statements are available for the year ended March 31, 1993
and for each year ending during the Lease Term and (ii) interim financial
statements if Landlord has a reasonable need therefore and requests such
statements describing the basis for such need in the request. Landlord
will maintain the confidentiality of said statements, provided, however,
that Landlord's employees, accountants, advisors, consultants and
prospective lenders may have access to such statements.
8. TENANT'S SECURITY.
During the Sole Tenancy Period Tenant shall be authorized and entitled to
provide Tenant's own security for the Building and Project, at Tenant's
sole cost and expense, subject to and conditioned upon the following terms
and conditions:
14
(a) Landlord and its agents shall have access to the Demised Premises at
all times (subject to the terms, conditions and limitations of Article
16 herein), notwithstanding Tenant's security system, and Tenant shall
make all arrangements necessary so that Landlord and its agents have
such access; and
(b) Tenant's security, may, at Tenant's option, include Tenant's own
security guards which may patrol the Building and parking facilities.
The rights of Tenant to utilize Tenant's own security service and
guards shall be further subject to and conditioned upon the following:
(i) Tenant's security guards shall in all instances be subject to
the direction and authority of Landlord's building management
and security guards for the Project, and Tenant shall so notify
Tenant's security guards;
(ii) Landlord shall have the right to approve Tenant's security
service, which approval shall not be unreasonably withheld,
conditioned or delayed. Tenant shall cause such security
service to post a roster and list of the persons which will be
working as Tenant's security guards with the building
management, indicating the people which will be working on
behalf of Tenant, and the exist times at which such people will
be working.
(iii) Tenant shall cause its security service to provide liability
insurance in amounts which Tenant and Landlord agree are
reasonable, and such insurance shall be written with companies
licensed to write insurance in the State of Georgia which are
otherwise satisfactory to Tenant and Landlord, and Tenant shall
cause ethe insurer to name Tenant, Landlord and any mortgagee
as additional named insureds on any such insurance policies,
and shall cause the insurer to issue insurance certificates to
landlord and mortgagee, and no such insurance may be modified
or cancelled on less than thirty (30) days' notice to Tenant,
Landlord and any mortgagee;
(iv) Tenant's security guards shall not in any manner interfere with
any other tenants in Wildwood Office Park, or the employees,
agents or invitees of such tenants;
(v) During the period in which Tenant provides security services
under this paragraph, Landlord shall have no obligation to
provide security for the Building, Landlord's sole security
obligation being to provide security services for the parking
facilities as described in paragraph 4 of this EXHIBIT "G"; and
(vi) If Tenant desires to provide security services under this
paragraph, Tenant shall give sixty (60) days written notice to
Landlord, which notice identifies the security service to be
used by Tenant.
15
9. BUILDING DIRECTORY AND SIGNAGE.
Landlord, at its expense, shall provide and maintain a Building directory
in the lobby of the Building for Tenant and the other tenants of the
Building, at Landlord's option, but only during periods other than the Sole
Tenancy Period. Tenant may install a new, discrete and tasteful monumental
sign containing Tenant's name or initials in a place between the entrance
of the Building and Windy Ridge Parkway, which place is reasonably approved
by Landlord. The cost of the sign and the design and materials will be
paid by Tenant and will be subject to Landlord's approval and may be funded
out of the Construction Allowance, to the extent available.
10. RESTRICTIONS ON USES OF OTHER TENANTS IN BUILDING.
Landlord shall not enter into a lease or consent to a sublease or an
assignment of any space in the Building or any other occupancy of space to
any tenant for the purpose of or which shall result in the conduct of
retail operations from such tenant's premises, except those businesses
primarily providing services to tenants in the Building or the Project,
such as, by way of illustration but not limitation, newsstands, sundry
shops, office supply stores, shoe repair stores, restaurants and retail
branch banks. The term "retail operations" shall not include stock
brokerage, insurance related or other uses which are principally office but
have a retail component. No retail space in the Building shall be on any
floor other than the first (1st) floor or basement.
11. TOTAL RENTABLE SQUARE FEET.
Attached as Exhibit "H" is a letter dated 5/19/93 Revised from Xxxxxxx
Xxxxxx Xxxxx, IBD ("Architect") in which the Architect states that the
total rentable square feet of the Building is at least equal to the Rental
Floor Area of Building, using the measurement methods and assumptions
identified in such letter.
12. AMERICANS WITH DISABILITIES ACT.
Landlord does hereby agree to make those alterations and improvements to
the Building which Landlord in good faith determines are necessary to bring
the Building into compliance with the Americans With Disabilities Act of
1992 ("ADA"), as reasonably interpreted by Landlord as of the date of this
Lease. The costs and expenses incurred by Landlord to accomplish such
compliance shall not be included in Operating Expenses. However, if after
the date of this Lease, new regulations are added to the ADA or the ADA is
interpreted in a manner that requires additional alterations and
improvements to be made to the Building and Landlord was reasonable in
making the determination, in good faith, that such alterations and
improvements were not required as of the date of this Lease, then Landlord
shall make the newly required alterations and improvements but the costs of
such alterations and improvements may be included in Operating Expenses;
provided, however, that if the new alterations and improvements are of a
capital nature, the costs of such capital improvements shall be amortized
over their respective useful lives
16
and only the amortization included in Operating Expenses in the manner
provided by Paragraph 9(a)(6) of the Lease.
13. ROOF REPAIRS.
Landlord and Tenant will jointly inspect the roof on the Rental
Commencement Date. If their inspection discloses to the reasonable
satisfaction of both parties, that there is an active roof leak, Landlord
shall repair such leak at its sole cost. Landlord does hereby agree that
if any leaks occur to the roof of the Building at any time after the Rental
Commencement Date and prior to the first anniversary of the Rental
Commencement Date and provided such leaks are not caused by the acts or
omissions of Tenant, its agents, contractors or employees, then Landlord
shall promptly take all action necessary to repair the roof of the Building
and, to the extent such costs exceed $5,000.00, such costs shall not be
included in Operating Expenses.
17
EXHIBIT "H"
Xxxxxxx Xxxxxx Xxxxx, IBD
Interior Architecture and Design
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
Xx. Xxxxxx Xxxxxxx
Cousins Real Estate Corporation
Suite 1600
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000
19 May 1993 Revised
RE: Wildwood A Building Area Calculations
Dear Xxxxxx:
Using the BOMA standards, I have calculated the rentable area of the Basement
through the Fifth Floors of the Wildwood A Building, 0000 Xxxxx Xxxxx Xxxxxxx.
Please note the following qualifications:
- The areas have been calculated manually as opposed to via computer
because the CAD files are no longer available.
- Areas were calculated from blueprints received from Cousins. These
prints are fourth generation reproductions and it can be assumed that
there has been some stretching or distortion in the floor plan during
the reproduction process.
- It is assumed that the original floor plans were drawn based on
verified (actual) field dimensions and not upon base building
architectural design drawings.
The gross area was calculated from the outside face of the dominant portion of
the permanent outer building walls; this is the glass curtain wall on the first
through fifth floors and the exterior wall on the basement level. Rentable area
was calculated by the subtraction of all the building shafts and the curtain
wall from the gross area. Shaft areas include the stairs, elevators and HVAC
chases as well as their surrounding walls. It does not include small
penetrations of the slab for plumbing or roof drains. No deductions have been
made to the areas for columns or projections necessary to the building.
EXHIBT "H" (contiued)
---------------------
Xxxxxx Xxxxxxx
19 May 1993 Revised
Page Two
GROSS AREA S/F RENTABLE AREA S/F
-------------- -----------------
Ground Floor 11,021 10,464
First Floor 19,126 18,492
Second Floor 19,565 18,575
Third Floor 20,177 19,543
Fourth Floor 20,643 20,009
Fifth Floor 21,208 20,574
------- -------
111,740 107,657
Please note that the overall rentable area has been calculated to be 2003 square
feet greater than your previous calculations indicated. This discrepancy is
attributable to the first two qualifications described herein. Please feel free
to call me should have any questions or require additional information.
Best regards,
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, I.B.D.
BBC:abc
EXHIBIT "I"
SCHEDULE OF 0000 XXXXX XXXXX XXXXXXX OPERATING EXPENSES
ACTUAL (1) BUDGET (1)
----1992 EXPENSES---- ----1993 EXPENSE----
EXPENSE CATEGORY $'S PER RSF $'S PER RSF
AMT 105,654 AMT 105,654 COMMENTS
--------------------- ---------- ---------- --------- --------- ----------
SALARIES 48,400 $0.46 42,000 $0.40 MGT & ENG STAFF ALLOCATED BASED ON TOTAL BLDG RSF TO ALL
CLEANING & JANITORIAL 102,276 $0.97 107,390 $1.02 INCLUDES CLEANING, SUPPLIES, BRONZE CONTRACT, WINDOW WASHING.
REPAIRS & MAINTENANCE 34,134 $0.32 36,500 $0.35 (4)
ELECTRICITY 142,422 $1.35 149,543 $1.42 ESTIMATED - DEPENDENT ON TENANT LOADS.
WATER 11,480 $0.11 12,500 $0.12
SECURITY 10,542 $0.10 13,246 $0.13 (5)
ROADS & GROUNDS 44,045 $0.42 47,319 $0.45 (6)
MANAGEMENT FEES (2) 26,414 $0.25 26,414 $0.25 SET PER AGREEMENT.
OTHER MGT COSTS 11,265 $0.11 10,896 $0.10 (7)
TAXES (3) 135,273 $1.28 108,608 $1.03 SEE NOTE #3.
INSURANCE 8,478 $0.08 8,800 $0.08
----------- --------- ----------- --------
TOTAL 574,729 $5.45 563,216 $5.35
(1) ASSUMING FULL OCCUPANCY. (GROSSING UP OF VARIABLE OPERATING EXPENSES)
(2) SET PER AGREEMENT.
(3) PROPERTY TAXES UNDER APPEAL & BUDGET ASSUMES THE FOLLOWING:
BUSINESS LICENSE 1,408
APPEAL COSTS 800
---------
SUB TOTAL 2,208
PROPERTY TAXES
VALUE 7,060,000
ASSESSMENT RATIO 40.00%
MILLAGE 0.038
----------
TAXES 106,400
TOTAL TAXES 108,608
(4) INCLUDES CONTRACTS ON ELEVATOR, HVAC AND LIFE SAFETY EQUIPMENT, LIGHT
BULBS, PLUMBING, ELECTRICAL, SUPPLIES & GENERAL BUILDING R&M.
(5) ALLOCATION OF WINDY RIDGE DECK PATROL BETWEEN THE 3 OFFICE BLDGS. LOCATED
ON WINDY RIDGE, PLUS ALLOCATION OF WILDWOOD NIGHT PATROL ("3RD SHIFT") AMONG
ALL OFFICE BUILDINGS.
(6) DIRECT COSTS OF EXT LANDSCAPING FOR PROPERTY, INCLUDING LOT SWEEPING, LOT
MAINTENANCE, PINESTRAW, SPRINKLER REPAIR & SNOW REMOVAL. PLUS, ALLOCATION OF
TOTAL PARKWAY COSTS IN WILDWOOD, BASED ON TOTAL PARKWAY COSTS LESS
REIMBURSEMENT FROM FREE STANDING RETAIL SITES, THE NET PKWY COST IS ALLOCATED
TO EACH OFFICE BUILDING IN WILDWOOD BASED ON TOTAL BUILDING RSF. AMOUNT
ALLOCATED TO 3301 IS $17,390 ($.16 PER RSF) OR 5.41% OF NET PARKWAY COSTS.
(7) ALLOCATION OF "G&A" COSTS OF WW MGT OFFICE LOCATED AT 2300 WINDY RIDGE
MGT OFFICE (INCLUDING MGT OFFICE RENT).
WILDWOOD OFFICE PARK
0000 XXXXX XXXXX XXXXXXX
THE SYSTEM WORKS, INC.
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("Amendment"), is made the 11TH of July, 1994
between COUSINS PROPERTIES INCORPORATED, a Georgia Corporation, having an
office at Suite 1600, 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000,
hereinafter called "Landlord" and THE SYSTEM WORKS, Inc., having its
principal office at Suite 500, 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx
00000, hereinafter called "Tenant".
W I T N E S S E T H:
--------------------
WHEREAS, Landlord and Tenant entered into that certain Lease dated June
8, 1993 (herein called the "Lease") with respect to the Demised Premises (as
defined in the Lease) located in the Building at 0000 Xxxxx Xxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxx; and
WHEREAS, Tenant wishes to amend its Lease to expand its Demised Premises;
and
WHEREAS, Landlord and Tenant desire to modify and amend the Lease to
accommodate such expansion.
NOW, THEREFORE, for and in consideration of the premises, the mutual
promises contained in this Amendment, and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged by the parties hereto, Landlord and Tenant do hereby agree as
follows:
1. All terms and words of art used herein, as indicated by the initial
capitalization thereof, shall have the same respective meaning
designated for such terms and words of art in the Lease.
2. ARTICLE 1, CERTAIN DEFINITIONS. Page 1 of the Lease Agreement shall be
modified as follows:
(g) RENTABLE FLOOR AREA OF DEMISED PREMISES: shall be amended by
deleting "63,688 square feet" and inserting "73,896 square
feet", effective on the Expansion Area Rental Commencement Date.
A new subparagraph "(o) Expansion Area" shall be added as follows:
"(o) EXPANSION AREA: The Expansion Area shall be defined as the
additional 10,208 square feet of Rentable Floor Area being
rented by Tenant on the first (1st) floor of the Building, as shown
in green on Exhibit "B-4" attached hereto. The Expansion Area
shall be included in the definition of Demised Premises for all
purposes of this Lease when such definition would not be
inconsistent with the specific reference to the Expansion Area."
-1-
3. EXHIBIT "G", PARAGRAPH 1, EXPANSION OPTIONS: The original Expansion
Options, paragraph 1(a) and (b), shall be deleted and the
following new Expansion Options, paragraph 1(a) and (b), shall be
inserted as follows:
"(a) GRANT OF EXPANSION OPTIONS: Landlord does hereby grant unto Tenant
the First Expansion Option, the Second Expansion Option and
the Third Expansion Option as more fully defined herein
(collectively the "Expansion Options") exercisable subject to
and in accordance with the terms and conditions of these Special
Stipulations. At Landlord's option, Tenant may not
exercise any Expansion Option if there is an event of default in the
performance of Tenant's covenants under this Lease either
at the time for exercising any of the Expansion Options or on the
Rent Commencement Date applicable thereto.
(b) PRINCIPAL DEFINITIONS:
(1) FIRST EXPANSION OPTION. The "First Expansion Option" is an
option to include within the Demised Premises that area (the
"First Expansion Space") shown on Exhibit "B-4". The
"First Expansion Option Exercise Deadline" is the last day of
August, 1995. The "First Expansion Rentable Floor
Area" is hereby conclusively agreed by the parties to be 10,208
square feet. The "First Expansion Option Rent
Commencement Date" shall be the earlier of (i) the date of
occupancy of any portion of the First Expansion
Space or (ii) 120 days following the delivery of the First
Expansion Option Exercise Notice (as defined
below) to Landlord; provided, however, if occupancy is delayed
solely due to Landlord's failure to approve or
disapprove the plans and specifications and contractors (if
Tenant has elected to do the Expansion Space
Construction itself), submitted by Tenant, within ten (10) days
of Landlord's receipt thereof or, if Landlord is
doing the Expansion Space Construction, due to Landlord's
failure to promptly commence and diligently
pursue to completion as soon as reasonably possible the
improvements described in Tenant's plans and specifications
(but it is clearly agreed that such 120-day period
shall not be extended even if the construction is not
substantially complete by the expiration of that period so
long as Landlord promptly commenced and diligently pursued
such construction), the "120 days" immediately above
shall be increased by the number of days of delay attributable
to such failures by Landlord (each such day of
delay caused by Landlord's failure with respect to either
matter described above is herewith referred to as
"Landlord Delay"). The "Construction Allowance" for the First
Expansion Space shall be equal to $4.50 (i)
multiplied by the number of whole months remaining in the
120-month Lease Term after the First Expansion
Option Rent Commencement Date, (ii) divided by 120 and (ii)
multiplied by the First Expansion Rentable Floor
Area.
(2) SECOND EXPANSION OPTION. The "Second Expansion Option" is an
option to include within the Demised Premises that area
(the "Second Expansion Space") shown on Exhibit "B -5".
The "Second Expansion Option Exercise Deadline" is the last
day of August, 1996. The "Second Expansion Rentable
Floor Area" is hereby conclusively agreed by the parties to be
10,208 square feet. The "Second Expansion Option
Rent
-2-
Commencement Date" shall be the earlier of (i) the date of
occupancy of any portion of the Second Expansion Space or
(ii) 120 days following the delivery of the Second
expansion Option Exercise Notice (as defined below) to
Landlord; provided, however, if occupancy is
delayed solely due to Landlord Delay, the "120 days"
immediately above shall be increased by the
number of days of delay solely attributable to Landlord Delay.
The "Construction Allowance" for the Second
Expansion Space shall be equal to $4.50 (i) multiplied by the
number of whole months remaining in the 120-month
Lease Term after the Second Expansion Option Rent Commencement
Date, (ii) divided by 120 and (iii) multiplied by
the Second Expansion Rentable Floor Area.
(3) THIRD EXPANSION OPTION. The "Third Expansion Option" is an
option to include within the Demised Premises that area
(the "Third Expansion Space") shown on Exhibit "B-6". The
"Third Expansion Option Exercise Deadline" is the last day
of August 1977. The "Third Expansion Rentable Floor
Area" is hereby conclusively agreed by the parties to be 21,550
square feet. The "Third Expansion Option Rent
Commencement Date" shall be the earlier of (i) the date of
occupancy of any portion of the Expansion Option
Exercise Notice (as defined below) to Landlord; provided,
however, if occupancy is delayed solely due to
Landlord Delay, the "120 days" immediately above shall be
increased by the number of days of delay solely
attributable to Landlord Delay. The "Construction Allowance"
for the Third Expansion space shall be equal to
$4.50 (i) multiplied by the number of whole months remaining in
the 120-month Lease Term after the Third
Expansion Option Rent Commencement Date, (ii) divided by 120
and (iii) multiplied by the Third Expansion
Rentable Floor Area."
4. FIRST EXPANSION OPTION. It is understood by execution of this First
Amendment to Lease, Tenant has hereby exercised its "First Expansion
Option".
5. EXHIBIT "G", SPECIAL STIPULATIONS, PARAGRAPH 4, USE OF COMMON AREA:
PARKING AREAS. A new subparagraph "(d)" shall be added as follows:
"(d) It is agreed that Tenant may use the Common Area Lobby on the first
(1st) floor of the Building as a reception area as long as
Tenant is the sole tenant of the Building. It is further understood
should Tenant make any alterations, additions or
improvements to the Common Area Lobby for its use as a reception
area, Tenant shall promptly restore, at its sole cost and
expense, the Lobby to its condition prior to the installation of
such alterations, additions or improvements at the earlier
of the expiration of the Lease Term or when the Landlord commences
leasing of the Building to third party tenants."
6. Except as expressly modified herein, the Lease shall remain in full force
and effect and, as hereby modified, is expressly ratified and confirmed
by the parties hereto. This Amendment shall be binding upon and shall
inure to the benefit of Landlord and Tenant and their respective,
permitted legal representatives, successors and assigns.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed and their respective seals to be affixed as of the date and year first
above written.
"Landlord"
COUSINS PROPERTIES INCORPORATED,
a Georgia corporation
BY: /S/[ILLEGIBLE]
------------------------
Its: VICE PRESIDENT
--------------------
[Corporate Seal]
"Tenant"
THE SYSTEM WORKS, INC.
BY: /S/ X. X. XXXXXXXX
-----------------------
Its: CONTROLLER
-------------------
[Corporate Seal]
-4-
EXHIBIT "B-4"
1ST FLOOR
First Expansion Space
(Crosshatched)
[Graphic]
[Drawing of First Expansion Space]
EXHIBIT "B-5"
1ST FLOOR
Second Expansion Space
(Crosshatched)
[Graphic]
[Drawing of Second Expansion Space]
EXHIBIT "B-6"
1st Floor
Third Expansion Space
(Crosshatched)
[Graphic]
[Drawing of Third Expansion Space]
WILDWOOD OFFICE PARK
0000 XXXXX XXXXX XXXXXXX
TSW INTERNATIONAL, INC.
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE ("Amendment"), is made the 31ST day of August,
1996, between COUSINS PROPERTIES INCORPORATED, a Georgia Corporation, having
an office at Suite 1600, 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx
00000-0000, hereinafter called "Landlord", and TSW INTERNATIONAL, Inc.
(successor in interest to The System Works, Inc. by name change), having its
principal office at Suite 500, 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx
00000, hereinafter called "Tenant".
W I T N E S S E T H:
-------------------
WHEREAS Landlord and Tenant entered into that certain Lease dated June 8,
1993 as amended by First Amendment to Lease dated July 11, 1994 (herein
called the "Lease") with respect to the Demised Premises (as defined in the
Lease) located in the Building at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx;
and
WHEREAS Tenant wishes to amend its Lease and exercise its Second
Expansion Option to expand its Demised Premises; and
WHEREAS, Landlord and Tenant desire to modify and amend the Lease to
accommodate such expansion.
NOW, THEREFORE, for and in consideration of the premises, the mutual
promises contained in this Amendment, and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged by the parties hereto, Landlord and Tenant do hereby agree as
follows:
1. All terms and words of art used herein, as indicated by the initial
capitalization hereof, shall have the same respective meaning
designated for such terms and words of art in the Lease.
2. ARTICLE 1, CERTAIN DEFINITIONS. Page 1 o the Lease Agreement shall be
modified as follows:
(g) RENTABLE FLOOR AREA OF DEMISED PREMISES: shall be amended by
deleting "73,896" and inserting "84,104" square feet.
A new subparagraph "(p) Second Expansion Area" shall be added as follows:
"(p) SECOND EXPANSION AREA. The Second Expansion Area shall be defined as
the additional 10,208 square feet of Rentable Floor Area
being leased by Tenant located on the 1st floor of the Building, as
shown in green on Exhibit "B-4" attached hereto. The
Expansion Area shall be included in definition of Demised Premises
for all purposes of this Lease when such definition would
not be consistent with the specific reference to the First Expansion
Area."
-1-
3. EXHIBIT "G, EXPANSION OPTIONS, PARAGRAPH 1(b)(2) shall be deleted in its
entirety and the following paragraph 1(b)(2) shall be inserted in lieu of:
"(2) SECOND EXPANSION OPTION. The "Second Expansion Option" is an option
to include within the Demised Premises that area (the "Second
Expansion Space") shown on Exhibit "B-4". The "Second Expansion
Option Exercise Deadline" is the last day of August, 1996. The
"Second Expansion Rentable Floor Area" is hereby conclusively agreed
by the parties to be 10,208 square feet. The "Second Expansion
Option Rent Commencement Date" shall be the earlier of (i) the date
of occupancy of any portion of the Second Expansion Space or
(ii) December 15, 1996; provided, however, if occupancy is delayed
solely due to Landlord Delay, the "120 days" immediately above shall
be increased by the number of days of delay solely attributable to
Landlord Delay. The "Construction Allowance" for the Second
Expansion Space shall be equal to $4.50 (i) multiplied by the number
of whole months remaining in the 120-month Lease Term after the Second
Expansion Option Rent Commencement Date, (ii) divided by 120 and
(iii) multiplied by the Second Expansion Rentable Floor Area. It is
further agreed Exhibit "B-5" attached hereto outlines the space Tenant
leased in its First Expansion Option."
4. SECOND EXPANSION OPTION. It is understood by execution of this Second
Amendment to Lease, Tenant has hereby exercised its "Second Expansion
Option".
5. Except as expressly modified herein, the Lease shall remain in full force
and effect and, as hereby modified, is expressly ratified and
confirmed by the parties hereto. This Amendment shall be binding upon
and shall inure to the benefit of Landlord and Tenant and their
respective, permitted legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed and their respective seals to be affixed as of the date and year first
above written.
"LANDLORD"
COUSINS PROPERTIES INCORPORATED,
a Georgia corporation
By:
-----------------------------
Its:
-------------------------
[CORPORATE SEAL]
"TENANT"
TSW INTERNATIONAL INC.,
By: /S/ XXXX XXXXXXX
-----------------------------
Its: CFO
--------------------------
[CORPORATE SEAL]
-2-
EXHIBIT "B-4"
1ST FLOOR
Second Expansion Space
(Crosshatched)
[Graphic]
[Drawing of Second Expansion Space]
EXHIBIT "B-5"
1ST FLOOR
First Expansion Space
(Crosshatched)
[Graphic]
[Drawing of First Expansion Space]
