GALLERIA
ATLANTA
OFFICE LEASE AGREEMENT
THE ULTIMATE SOFTWARE GROUP, INC.,
A DELAWARE CORPORATION
TABLE OF CONTENTS
Page
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PARAGRAPH
1 TERM AND POSSESSION 1
2 MONTHLY RENTAL 2
3 SECURITY DEPOSIT 5
4 OCCUPANCY AND USE 6
5 COMPLIANCE WITH LAWS 6
6 ALTERATIONS 6
7 REPAIR 7
8 LIENS 7
9 ASSIGNMENT AND SUBLETTING 7
10 INSURANCE AND INDEMNIFICATION 8
11 WAIVER OF SUBROGATION 9
12 SERVICE AND UTILITIES 9
13 ESTOPPEL CERTIFICATE 10
14 HOLDING OVER 11
15 SUBORDINATION 11
16 RE-ENTRY BY LANDLORD 11
17 INSOLVENCY OR BANKRUPTCY 12
18 DEFAULT AND REMEDIES 12
19 DAMAGE BY FIRE 14
20 CONDEMNATION 15
21 SALE BY LANDLORD 16
22 RIGHT OF LANDLORD TO PERFORM 16
23 SURRENDER OF PREMISES 16
24 WAIVER 16
25 NOTICES 16
26 CERTAIN RIGHTS RESERVED TO LANDLORD 17
27 ABANDONMENT 17
28 SUCCESSORS AND ASSIGNS 17
29 ATTORNEY'S FEES 17
30 CORPORATE AUTHORITY 17
31 MORTGAGE APPROVALS 18
32 MISCELLANEOUS 18
33 LANDLORD'S LIEN 18
34 QUIET ENJOYMENT 19
35 LANDLORD'S LIABILITY 19
36 RIGHT TO RELOCATE 19
37 NO ESTATE 19
38 LEASE EFFECTIVE DATE 19
39 RULES AND REGULATIONS 19
40 SPECIAL STIPULATIONS 20
41 GUARANTY 20
42 CONDITION 20
43 BROKERAGE COMMISSIONS 20
44 EXCULPATION 20
EXHIBIT
A RULES AND REGULATIONS
B WORK LETTER AGREEMENT
C ESTOPPEL CERTIFICATE
D FLOOR PLAN OF DEMISED PREMISES
E SPECIAL STIPULATIONS
F GUARANTY
G INSURANCE
GALLERIA
ATLANTA
OFFICE LEASE AGREEMENT
THIS LEASE is made as of the 27 day of April, 2006 between Galleria 600,
LLC, a Delaware limited liability company (hereinafter called "Landlord") and
The Ultimate Software Group Inc., a Delaware corporation (hereinafter called
"Tenant").
WITNESSETH:
Landlord hereby lease to Tenant and Tenant hereby leases from Landlord
those premises (hereinafter called "Premises") shown on Exhibit "D" attached
hereto (outlined in red) and made a part thereof, being located in Atlanta
Galleria Office Tower No. 600, a multistory office building comprised of
approximately 432,000 rentable square feet (the "Building") constructed on a
parcel of land (the "Property") bounded by I-285 on the North, I-75 on the East,
U.S. 41 on the West and ▇▇▇▇▇ Mill Road on the South. Tenant's Federal Tax
Identification Number is ▇▇-▇▇▇▇▇▇▇.
PREMISES: Atlanta ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Square Feet: 14,309 Suite Number: 1000
Floor(s): 10th Floor
1. TERM AND POSSESSION. 1. (a) The term of the Lease shall be for
seventy-nine (79) months (or until sooner
terminated as herein provided) (the "Lease
Term"), commencing as of the "Commencement Date"
(as hereinafter defined), except that if the
Commencement Date is other than the first day
of a calendar month, the Lease Term hereof shall
be extended for the remainder of that calendar
month.
(b) The Commencement Date shall be the date
which is fourteen (14) days after the Possession
Date (defined below). The Possession Date shall
be the date upon which Landlord delivers
possession of the Premises to Tenant which shall
be no later than June 15, 2006, subject to
adjustment as set forth below. As a condition to
Landlord's delivery of the Premises to Tenant.
Landlord shall satisfy each of the following: (i)
substantial completion of the Premises in
accordance with the plans and specifications as
described in the Work Letter Agreement attached
hereto as Exhibit "B" and made a part hereof
("Plans and Specifications"), the term
substantial completion being hereby defined as
the completion of Landlord's work pursuant to the
Work Letter Agreement so as to allow Tenant to
occupy Premise for Tenant's intended use
thereof; and (ii) upon issuance of the
Certificate of Occupancy for the Premises. In the
event Landlord fails to deliver to Tenant the
Premises pursuant to the terms and conditions
hereof by no later than June 15, 2006 (subject to
adjustments as set forth below), then Tenant
shall have the following remedies: (x) an
additional day of free rent for each day of delay
of delivery of possession as aforedescribed
beyond July 15, 2006, subject to the adjustments
set forth below; and (y) the right, in Tenant's
sole discretion, to terminate this Lease if the
Landlord fails to deliver possession by no later
than December 31, 2006, subject to the
adjustments set forth below. In the event that
Landlord shall be delayed in such delivery of
possession of the Premises based upon: (1)
Tenant's failure to timely agree to the Plans and
Specifications, or cost estimates for any of
Tenant's work which is deemed not to be included
in the "turn key" build out by Landlord pursuant
to the Work Letter Agreement; (2) Tenant's
request for materials, finishes or installations
other than as set forth in the Plans and
Specifications which causes a delay in the
completion of Landlord's work as described in the
Work Letter Agreement; (3) Tenant's changes in the
Plans and Specifications which require additional
time for installation or construction thereof that
delay delivery of possession of the Premises: or
(4) the performance or completion by a party
employed by Tenant which delays Landlord's
completion of the Premises pursuant to the Plans
and Specifications, then the latest date for the
deliver of possession, i.e. June 15, 2006, shall
be extended by the number of days of such delay.
Notwithstanding any language contained herein to
the contrary. Landlord's construction manager and
contractor will work with Tenant to provide a
mutually acceptable completion schedule for
Tenant's furniture, fixture and equipment
installation and shall allow Tenant's agents to
install the cabling and audio visual wiring
pursuant to the Work Letter Agreement prior to
the issuance of a Certificate of Occupancy
without the same being deemed a delay by Tenant
unless such work substantially interferes with
the work of Landlord as required under the Work
Letter Agreement.
(c) Landlord agrees to use its best efforts
to perform all work to be performed by Landlord
in the Premises as provided in the Work Letter
Agreement with diligence, subject to events and
delays due to causes beyond its reasonable
control. Landlord shall have substantially
completed the Premises as defined above by no
later than the Possession Date, subject to delays
as set forth herein, and subject only to the
completion of items on Landlord's punch list.
(d) This Paragraph is intentionally deleted.
(e) The taking, of possession by Tenant
shall be deemed conclusively to establish that
the Building, other improvements, and the
Premises have been completed in accordance with
the Plans and Specifications and are in good and
satisfactory condition as of when possession was
so taken, except that all warranties of
Landlord's contractor shall run to Tenant with
regard to the work provided pursuant to the Plans
and Specifications.
2. MONTHLY RENTAL. 2. (a) Subject to the terms and provisions of
Paragraph 2(d) regarding annual increase
in rent and Paragraph 2 of Exhibit "E" entitled
"Special Stipulations, Tenant shall pay to
Landlord throughout the term of this Lease annual
rental of Three Hundred Twenty One Thousand
Nine Hundred Fifty Two and 50/100 Dollars
($321,952.50) payable in equal monthly rental
installments of Twenty Six Thousand Eight
Hundred Twenty Nine and 38/100 Dollars
($26,829.38), payable in advance on the first
day of each month during every year of the term
hereby demised in lawful money of the
United States, without deduction or offset
whatsoever, to Landlord or to such other
firm as Landlord may from time to time designate
in writing. Until notified otherwise,
Tenant shall submit all payments using one of
the following methods:
Preferred Method
Automated Clearing House (ACH)
BANK NAME: FIFTH THIRD BANK
ACCOUNT # ▇▇▇▇▇▇▇▇▇▇
ROUTING & TRANSIT: 042 000 314
ACCOUNT: OTR NOMINEE OF STATE TEACHERS RETIREMENT
SYSTEM OF OHIO
REFERENCE: THE ULTIMATE SOFTWARE GROUP. INC.
Tenant must notify Landlord of ACH wire using one
of the following methods:
Fax: Childress ▇▇▇▇▇ Properties,
Attn: ▇▇▇▇▇ ▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇ or
E-mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
ACH Wiring instructions are subject to change
upon notification from Landlord.
Alternate Method
Issue a check
OTR NOMINEE OF STATE TEACHERS RETIREMENT SYSTEM
OF OHIO
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Please note Wire Transfers are not an approved
form of payment; however ACH as described above
is an approved form of payment. Said rental is
subject to adjustments as provided herein below.
If this Lease commences on a day other than the
first day of a calendar month, the monthly rental
for the fractional month shall be appropriately
prorated.
Landlord shall have no obligation to provide
invoices to Tenant for the monthly rental
payments due under this Lease, and each such
monthly rental payment shall be paid by Tenant
when due as set forth herein whether or not
Tenant receives an invoice for such payment.
(b) Tenant recognizes that late payment of
any rent or other sum due hereunder from Tenant
to Landlord will result in administrative expense
to Landlord, the extent of which additional
expense is extremely difficult and economically
impractical to ascertain. Tenant therefore agrees
that if rent or any other payment due hereunder
from Tenant to Landlord remains unpaid five (5)
days after said amount is due and payable in
excess of two (2) times within any twelve (12)
month period, the amount of such unpaid rent or
other payment shall be increased by a late charge
to be paid to Landlord by Tenant in an amount
equal to five percent (5%) of the amount of the
delinquent rent or other payment. The amount of
the late charge to be paid to Landlord by Tenant
for any month shall be computed on the aggregate
amount of delinquent rents and other payments,
including all accrued late charges then
outstanding, and shall be deemed to be rental for
all purposes hereunder. Tenant agrees that such
amount is a reasonable estimate of the loss and
expense to be suffered by Landlord as a result of
such late payment by Tenant and may be charged by
Landlord to defray such loss and expense. The
provisions of this paragraph in no way relieve
Tenant of the obligation to pay rent or other
payments on or before the date on which they are
due, nor do the terms of this
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paragraph in any way affect Landlord's remedies
pursuant to Paragraph 18 of this Lease in the
event said rent or other payment is unpaid after
the date due.
(c) The monthly rental payable hereunder
shall be subject to adjustment each calendar year
during the term of this Lease, commencing
January 1, 2007, in the following manner:
(i) Tenant shall pay to Landlord as
additional rent Tenant's proportionate share
of the amount by which the Direct Operating
Expenses (as hereinafter defined) incurred
by Landlord in the operation of the Building
during each calendar year of the Lease Term
exceeds the Direct Operating Expenses for
the base year 2006 (hereinafter called the
"Base Year"). Tenant's Proportionate Share
of Direct Operating Expenses (as hereinafter
defined) shall be prorated on a daily basis
using a 365-day calendar year, as necessary
for any year during which this Lease is in
effect for less than the full twelve month
calendar year. Direct Operating Expenses
shall be calculated on an accrual basis. For
the purpose of estimating the Direct
Operating Expenses during each subsequent
year after the Base Year, Landlord shall
reasonably estimate such expenses (assuming
ninety-five percent (95%) occupancy of the
Building if the actual occupancy is less
than ninety-five, percent) based on the
actual Direct Operating Expenses for the
preceding year, any then-known cost changes
or additional expenses which can be
reasonably anticipated to occur within the
year for which such expenses are estimated,
landlord's experience with similar office
buildings, the costs of contracts already
entered, quotes obtained, representations of
providers of the services and equipment,
consultation with specialists such as
insurers, and other factors a prudent
landlord would use to make a fair and
accurate estimate of operating costs.
Notwithstanding anything, contained in this
Lease to the contrary, for purposes of
determining Direct Operating Expenses for
the Base Year and each calendar year
subsequent to the Base Year, in the event
actual occupancy of the Building is less
than ninety-five percent (95%) during any
calendar year, the actual Direct Operating
Expenses for such calendar year shall be
increased to the amount which Landlord
reasonably estimates would have been
incurred for such calendar year had the
occupancy of the Building been ninety-five
percent (95%) throughout such year, and the
amount so estimated shall be deemed to be
the Direct Operating Expenses for such
calendar year.
(ii) "Tenant's Proportionate Share of
Direct Operating Expenses" shall mean, for
each calendar year (or portion thereof), the
product of (i) the Operating Expense Amount
(defined below) multiplied by (ii) a
fraction, the numerator of which is the
number of square feet contained in the
Premises (14,309) and the denominator of
which is the number of rentable square feet
contained in the Building (430,017). As used
herein, the "Operating Expense Amount" shall
mean, for each calendar year (or portion
thereof), the amount by which the Direct
Operating Expenses (defined below) exceeds
the Base Year's Direct Operating Expenses.
(iii) For purposes of this Lease, the
term "Direct Operating Expenses" shall
consist of all "operating costs" (as
hereinafter defined) for the Building, and
the Building's share of all operating costs
for any parking area and common area serving
the Building, and the Property (the
Building, such parking area, common area and
the Property being hereinafter referred to
collectively as the "Project"). For purposes
of this Lease, the term "operating costs"
shall mean all reasonable expenses, costs
and disbursements computed on the accrual
basis, relating to or incurred or paid in
connection with the operation, maintenance
and repair of the Project, including, but
not limited to the following:
a. Building personnel costs, including,
but not limited to, salaries, wages,
fringe benefits, social security taxes
and other direct and indirect costs of
Senior Property Manager, Engineering
Manager, Building Managers, Accounting
Manager, Construction Manager,
Promotions Manager, Security Manager,
and each department's supporting
personnel and administrative
assistants, engineers, construction
department, superintendents, watchmen,
porters and any other personnel engaged
in the operation and maintenance of the
Project and associated overhead.
b. The cost of all supplies, tools,
equipment and materials used in the
operation and maintenance of the
Project.
c. The cost of water, sewer, gas,
heating, lighting, ventilation,
electricity, air conditioning, and any
other utilities supplied or paid for by
Landlord for the Project and the costs
of maintaining the systems supplying
the same, including, but not limited
to, any utility and service costs
incurred by Landlord.
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d. The cost of all agreements for
maintenance and service of the Project and
the equipment therein, including, but not
limited to, agreements relating to security
service, window cleaning, elevator
maintenance, chiller maintenance, Building
management, janitorial service, pest control
and landscaping maintenance.
e. The cost of maintaining sprinkler
systems, fire extinguishers and fire hoses,
emergency systems and equipment that may be
now or hereafter required by the Americans
With Disabilities Act, and the cost of all
security services and protective services or
devices rendered to or in connection with
the Project or any part thereof; any costs
incurred in order to comply with any law,
statute, ordinance, or governmental rule,
regulation or requirement now in force or
which may hereafter be enacted or
promulgated; and the costs incurred in order
to comply with requirements of any insurer
or mortgagee, where such requirements
concern safety or structural features of the
Building and are commercially reasonable in
light of requirements generally imposed in
the insurance or real estate lending
industries with respect to similar
buildings.
f. Insurance premiums for insurance for the
Project required to be maintained by
Landlord hereunder or which a prudent owner
would carry, including, but not limited to,
premiums for insurance maintained by
Landlord, business interruption or rental
abatement insurance, garage keeper's
insurance, and liability insurance.
g. The cost of repairs and general
maintenance of the Project (excluding
repairs, alterations and general maintenance
paid by proceeds of insurance or
attributable solely to tenants of the
Project other than Tenant, but including
deductibles paid by Landlord), including,
but not limited to: any management fees
charged by Landlord; promotional or seasonal
expenses; maintenance and cleaning of common
areas and facilities; lawn mowing,
gardening, landscaping, and irrigation of
landscaped areas; line painting, pavement
repair and maintenance, sweeping, and
sanitary control; removal of snow, trash,
rubbish, garbage, and other refuse; the cost
of personnel to implement such services, to
direct parking, and to patrol the common
areas; the cost of exterior and interior
painting of common areas; all maintenance
and repair costs; and the cost of
maintenance of sewers and utility lines.
h. The amortization amount (including
interest at a market rate) necessary to
amortize the cost of capitalized alterations
or improvements, including, but not limited
to, the replacement of existing furniture,
fixtures, equipment or systems that have
become obsolete or do not function
efficiently and effectively or as they were
originally intended for a first class office
building. The amortization period selected
by the Landlord shall reflect the useful
life of the alteration or improvement.
i. All taxes, assessments, and governmental
or other charges, general or special,
ordinary or extraordinary, foreseen or
unforeseen (including, but not limited to,
Community Improvement District assessments),
which are levied, assessed, or otherwise
imposed against the Project, street lights,
personal property or rents, or on the right
or privilege of leasing the Project,
collecting rents therefrom or parking
vehicles thereon, by any federal, state,
county, or municipal government or by any
special sanitation district or by any other
governmental or quasi-governmental entity
that has taxing or assessment authority, and
any other taxes and assessments, together
with any interest and penalties thereon,
attributable to the Project or its operation
(herein collectively called the
"Impositions"), but exclusive of federal,
state and local income taxes of Landlord,
inheritance taxes, estate taxes, gift taxes,
transfer taxes, excess profit taxes and any
taxes imposed in lieu of such taxes. 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
Impositions now levied, assessed or imposed
on real estate and the improvements thereon
shall be discontinued and as a substitute
therefor, or in lieu of and in addition
thereof, 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 Impositions and the operating
costs. Tenant will be responsible for ad
valorem taxes on its personal property and
on the value of the leasehold improvements
in the Premises to the extent the same
exceed
4
building standard allowances (and if the
taxing authorities do not separately assess
Tenant's leasehold improvements, Landlord
may make a reasonable allocation of the ad
valorem taxes allocated to the Project to
give effect to this sentence).
j. All assessments (if any) assessed against
the Project during the Lease Term pursuant
to any protective covenants, easement
agreements or common area maintenance
agreements now or hereafter of record
against the Project including, but not
limited to, any common area maintenance
charges assessed pursuant to that certain
Common Area Maintenance Agreement dated July
2, 1985, as said Agreement has been and may
be amended from time to time.
k. Fees of accountants, attorneys and other
consultants, professionals or advisors
incurred by Landlord with respect to
operational issues at the Project.
l. Any other costs or expenses incurred by
Landlord in the operation of the Project
that would be considered an expense of
maintaining, operating or repairing the
Project, all such costs and expenses being
recorded on an accrual basis in accordance
with accepted principles of sound management
and accounting practices applicable to first
class office building complexes and
consistently applied.
Direct Operating Expenses shall not include
the following items:
Leasing commissions, finders' fees,
brokerage fees, and costs incurred with the
negotiation of leases (but not management
fees); Rent under any ground leases; Costs
of furnishing services to other tenants or
occupants to the extent that such services
are materially and substantially in excess
of services Landlord offers to all tenants
at Landlord's expense; Lease takeover costs
incurred by Landlord in connection with new
leases at the Property; Costs and expenses
of the sale of all or any portion of the
Property; Costs incurred by Landlord with
respect to repairs, goods and services
(including utilities sold and supplied to
tenants and occupants of the Property) to
the extent that Landlord is entitled to
reimbursement for such costs from the
tenants; Costs incurred by Landlord due to
the violation by Landlord of the terms and
conditions of any lease of space in the
Property; Interest, points and fees on debt
or amortization or for any mortgage or
mortgages encumbering the Property, or any
part thereof, and all principal, escrow
deposits and other sums paid on or in
respect to any indebtedness (whether or not
secured by a mortgage lien) and on any
equity participations of any lender or
lessor, and all costs incurred in connection
with any financing, refinancing or
syndication of the Property, or any part
thereof; Costs of the original construction
of the Property; Income, franchise,
transfer, inheritance, capital stock,
estate, profit, gift, gross receipts or
succession taxes; Costs of repairs or
replacements incurred by reason of fire or
other casualty or condemnation in excess of
the insurance deductible; Costs for
performing tenant installations for any
individual tenant or for performing work or
furnishing services to or for individual
tenant at such tenant's expense and any
other contribution by Landlord to the cost
of tenant improvements to the extent such
work is reimbursed or capitalized.
(iv) Nothing contained in this Paragraph
shall imply any duty on the part of Landlord to
pay any expense or provide any service not
otherwise imposed by the express terms of this
Lease.
(v) On or about December 31 of each calendar
year during the Lease Term, Landlord shall
estimate the amount of Direct Operating Expenses
and Tenant's Proportionate Share of Direct
Operating Expenses for the ensuing calendar year
or (if applicable) fractional part thereof and
notify Tenant in writing of such estimate. Such
estimate shall be made by Landlord in the
exercise of its discretion, and shall not be
subject to dispute by Tenant. The amount of
additional rent specified in such notification
shall be paid by Tenant to Landlord in equal
monthly installments in advance on the first day
of each month of such ensuing calendar year, at
the same time and in the same manner as base
rent.
(vi) Within One Hundred Eighty (180) days
after December 31 of any calendar year during the
Lease Term for which additional rent is due under
this Paragraph, Landlord shall advise Tenant in
writing, of the amount of actual Direct Operating
Expenses for such calendar year. If the Direct
Operating Expenses for such calendar year prove
to be greater than the amount previously
estimated, Landlord shall invoice Tenant for the
deficiency as soon as practicable after the
amount of underpayment has been determined, and
Tenant
5
shall pay such deficiency to Landlord within
thirty (30) days following its receipt of such
invoice. If, however, Direct Operating Expenses
for such calendar year are lower than the amount
previously estimated, Tenant shall receive a
credit (or in the event the term of this Lease
has then expired, Tenant shall receive a cash
refund) toward the next ensuing monthly payment
or payments of the estimated amount of Tenant's
Proportionate Share of Direct Operating Expenses
in the amount of such overpayment until depleted,
but in no event shall Tenant's Proportionate
Share of Direct Operating Expenses be deemed to
be less than zero.
(d) In addition, Tenant agrees to pay to
Landlord an increase in the rental payable
under Paragraph 2(a) hereof which shall be
calculated as follows:
For each year of the term of this Lease,
commencing on the first anniversary of the
Commencement Date, the annual rental payable
under Paragraph 2(a) shall be increased by
multiplying said annual rental payable under
Paragraph 2(a) for the prior year by One
Hundred Three percent (103%) and the
product so achieved shall be the rental for
the current year. This process and rental
increase shall be accomplished for each
subsequent year of this Lease and any
option, renewal or extension of this Lease.
Should the Commencement Date be a day other
than the first day of a calendar month, then
said annual increases shall commence on the
first day of that month immediately
following the anniversary of the
Commencement Date.
(e) Notwithstanding any of the language
contained in this Section 2 to the contrary,
Tenant shall not be obligated to pay the
excess of any Direct Operating Expenses or
any other expenses as set forth in
Paragraphs 2(c) and 2(d) to the extent that
such excess of expenses is based upon an
increase in expenses in excess of six
percent (6%) over the prior year, excluding
each of the following: (i) ad valorem taxes
and special assessments levied against the
Property; (ii) general liability insurance
and property damage insurance for the
Property maintained by Landlord; and (iii)
electrical utilities.
3. SECURITY DEPOSIT. 3. Tenant hereby deposits with Landlord on the
date hereof the sum of Twenty Six Thousand Eight
Hundred Twenty Nine and 38/100 Dollars
($26,829.38), which sum shall be held by
Landlord, without obligation for interest, as
security for the full, timely and faithful
performance of Tenant's covenants and obligations
under this Lease. It is understood and agreed
that such deposit is not an advance rental
deposit or prepayment of the last month's rent
due hereunder, and is not a measure of Landlord's
damages in case of Tenant's default. Upon the
occurrence of any default or event of default by
Tenant, Landlord may, from time to time, without
prejudice to any other remedy provided herein or
provided by law, use such funds to the extent
necessary to make good any arrears of rent or
other payments due Landlord hereunder, and any
other damage, injury, expense or liability caused
by any event of Tenant's default; and Tenant
shall pay to Landlord on demand the amount so
applied in order to restore the security deposit
to its original amount. Although the security
deposit shall be deemed the property of Landlord,
any remaining balance of such deposit shall be
returned by Landlord to Tenant or Tenant's last
permitted assignee at such time after termination
of this Lease when Landlord shall have determined
that all Tenant's obligations under this Lease
have been fulfilled. Landlord shall not be
required to keep any security deposit separate
from its general funds, Subject to the other
terms and conditions contained in this Lease, if
the Building is conveyed by Landlord, said
deposit shall be turned over to Landlord's
grantee, and thereupon, Tenant hereby releases
Landlord from any and all liability with respect
to said deposit and its application or return.
4. OCCUPANCY AND USE. 4. (a) Tenant shall use and occupy the Premises
for general office purposes, including, without
limitation, as a software company for
development, support and training of clients, and
for no other use or purpose without the prior
written consent of Landlord, which consent shall
not be unreasonably withheld.
(b) Tenant shall not do or permit anything
to be done in or about the Premises which will in
any way obstruct or interfere with the rights of
other tenants or occupants of the Building or
injure or annoy them, nor use or allow the
Premises to be used for any improper, immoral,
unlawful, or objectionable purposes or for any
business, use or purpose deemed to be
disreputable or inconsistent with the operation
of a first class office building, nor shall
Tenant cause or maintain or permit any nuisance
in, on, or about the Premises. Tenant shall not
commit or suffer the commission of any waste in,
on, or about the Premises.
5. COMPLIANCE WITH LAWS. 5. (a) Tenant shall not use the Premises or
permit anything to be done in or about the
Premises which will in any way conflict with any
law, statute, ordinance, or governmental rule,
regulation or requirement now in force or which
may hereafter be enacted or promulgated. Tenant
shall not do or permit anything to be done on or
about the Premises or bring or keep anything
therein which will in any way increase the rate
of any insurance upon the Building in which the
Premises are situated or any of its contents or
cause a cancellation of said insurance or
otherwise affect said insurance in any manner,
and Tenant shall at its sole cost and expense
6
promptly comply with all laws, statutes,
ordinances, and governmental rules, regulations,
or requirements now in force or which may
hereafter be in force and with the requirements
of any board of fire underwriters or other
similar body now or hereafter constituted
relating to or affecting the condition, use, or
occupancy of the Premises. Notwithstanding
anything contained in this paragraph to the
contrary, the following shall apply: (i) Tenant
shall not be responsible for ensuring that the
common areas of the Building comply with
applicable laws; (ii) Landlord shall require its
architect to prepare the Plans and Specifications
pursuant in compliance with all laws and
regulations, including without limitation the
American Disabilities Act ("Act"); and (iii)
Landlord shall require its contractor to complete
all of Landlord's turn key build out of the
Premises as described in the Work Letter
Agreement pursuant to all laws and regulations,
including without limitation the ADA.
(b) Tenant shall not use, handle, store,
deal in, discharge, or fabricate any Hazardous
Materials (as herein defined) on or about the
Premises. Tenant shall indemnify Landlord (and
anybody claiming by, through or under Landlord)
from and against any and all claims, damages,
losses, costs, and expenses (including reasonable
attorneys' fees and court costs) incurred by
Landlord or anybody claiming by, through, or
under Landlord as a result of the existence of
any Hazardous Materials on or about the Premises,
or any enviromental problems relating to the
Premises which are caused by or related to the
delivery, deposit or creation of Hazardous
Materials on or about the Premises during the
term of this Lease which arise from Tenant's use
and occupancy thereof. As used herein, "Hazardous
Materials" means any petroleum or chemical
liquids or solids, liquid or gaseous products,
contaminants, oils, radioactive materials,
asbestos. PCB's ureaformaldehyde, or any toxic or
hazardous waste or hazardous substances, as
those; terms are used in (A) the Resources
Conservation Recovery Act, as amended by the
Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. Sections 6901 et seq.: (B) the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. Sections
9601 et seq.; (C) the Clean Water Act, 33 U.S.C
Sections 1251 et seq.; (D) the Toxic Substances
and Control Act, 15 U.S.C. Sections 2601 et seq,;
(E) the Clean Air Act; 42 U.S.C. Sections 7401 et
seq.; (F) any and all applicable environmental
laws and regulations of the State of Georgia; and
(G) any and all other applicable federal, state
or local law or regulation governing hazardous
substances or workplace health or safety, as such
laws may be amended from time to time
6. ALTERATIONS. 6. Except as otherwise allowed under this Lease,
including, without limitation the Work Letter
Agreement. Tenant shall not make or suffer to be
made any alterations additions, or improvements
in, on, or to the Premises or any part thereof
without the prior written consent of Landlord,
which consent shall not be unreasonably withheld
and no such alterations, additions or
improvements shall be made without the
supervision of Landlord's designated agent or
representative. In the event Landlord consents to
the making of any such alterations, additions, or
improvements by Tenant, the same shall be made by
Tenant, at Tenant's sole cost and expense in
accordance with all applicable laws, ordinances,
and regulations and all requirements of
Landlord's and Tenant's insurance policies. All
work shall be performed in accordance with plans
and specifications approved by Landlord, and each
contractor and subcontractor must first be
approved in writing by Landlord, or at Landlord's
option, the alteration, addition or improvement
shall be made by Landlord for Tenant's account,
and Tenant shall reimburse Landlord for the cost
thereof upon demand. To the extent that Tenant
requests that Landlord manage any construction
services to the Premises, then Landlord may
charge a fee for any and all such construction
supervision provided by Landlord's designated
agents or representatives in connection with such
alterations, additions or improvement to the
Premises by Tenant. Such fee, at Landlord's
option, shall be either a fixed fee or a fee
calculated an hourly basis considering the time
expended by Landlord's agents or representatives
in supervising Tenant's construction.
(7) REPAIR 7. By taking possession of the Premises and
except as otherwise provided herein. Tenant
accepts the Premises as being in the condition in
which Landlord is obligated to deliver them and
otherwise in good order, condition and repair.
Except as otherwise provided in this Lease,
including, without limitation. Paragraph 12
hereof Tenant shall, at all times during the term
hereof at Tenant's sole cost and expense, keep
the Premises and every part thereof in good
order, condition and repair, excepting ordinary
wear and tear, damage thereto by fire,
earthquake, act of God or the elements. Tenant
shall upon the expiration or sooner termination
of the term hereof, unless Landlord demands
otherwise as in Paragraph 23 hereof provided,
surrender to Landlord the Premises and all
repairs, changes, alterations, additions and
improvements thereto in the same condition as
when received, or when first installed, ordinary
wear and tear, damage by fire, earthquake, act of
God, or the elements excepted. It is hereby
understood and agreed that Landlord has no
obligation to alter, remodel, improve, repair,
decorate, or paint the Premises or any part
thereof except as otherwise required under this
Lease, including without limitation, as specified
in the Work Letter Agreement, and that no
representations
7
respecting the condition of the Premises or the
Building have been made by Landlord to Tenant,
except as specifically herein set forth.
8. LIENS. 8. Tenant shall keep the Premises free from any
liens arising out of any work performed, material
furnished, or obligations incurred by Tenant. In
the event that Tenant shall not, within ten (10)
days following the recordation of any such lien,
cause the same to be released of record by
payment or posting of a proper bond, Landlord
shall have, in addition to all other remedies
provided herein and by law, the right, but not
the obligation, to cause the same to be released
by such means as it shall deem proper, including
payment of the claim giving rise to such lien.
All such sums paid by Landlord and all expenses
incurred by it in connection therewith shall be
considered additional rent and shall be payable
to Landlord by Tenant on demand and with interest
at the rate of four percentage points higher than
the prime commercial lending rate from time to
time of SunTrust Bank in Atlanta, Georgia,
provided, however, that if such rate exceeds the
maximum rate permitted by law, the maximum
lawful rate shall apply; the interest rate so
determined is hereinafter called the "Agreed
Interest Rate". Landlord shall have the right at
all times to post and keep posted on the Premises
any notices permitted or required by law, or
which Landlord shall deem proper, for the
protection of Landlord, the Premises, the
Building, and any other party having an interest
therein, from mechanics' and materialmen's liens,
and Tenant shall give to Landlord at least five
(5) business days prior notice of commencement of
any construction on the Premises.
9. ASSIGNMENT AND 9. (a) Tenant shall not sell, assign, encumber or
SUBLETTING. otherwise transfer by operation of law or
otherwise this Lease or any interest herein,
sublet the Premises or any portion thereof, or
suffer any other person to occupy or use the
Premises or any portion thereof, without the
prior written consent of Landlord as provided
herein, which consent shall not be unreasonably
withheld, nor shall Tenant permit any lien to be
placed on the Tenant's interest by operation of
law. Tenant shall, by written notice, advise
Landlord of its desire from and after a stated
date (which shall not be less than thirty (30)
days nor more than ninety (90) days after the
date of Tenant's notice) to sublet the Premises
or any portion thereof for any part of the term
hereof; and supply Landlord with such
information, financial statements, verifications
and related materials as Landlord may request or
desire to evaluate the written request to sublet;
and in such event Landlord shall have the right,
to be exercised by giving written notice to
Tenant within ten (10) days after receipt of
Tenant's notice and all said information,
financial statements, verifications and related
materials requested by Landlord, to terminate
this Lease as to the portion of the Premises
described in Tenant's notice and such notice
shall, if given, terminate this Lease with
respect to the portion of the Premises therein
described as of the date stated in Tenant's
notice. Said notice by Tenant shall state the
name and address of the proposed subtenant, and
Tenant shall deliver to Landlord a true and
complete copy of the proposed sublease with said
notice. If said notice shall specify all of the
Premises and Landlord shall give said termination
notice with respect thereto, this Lease shall
terminate on the date stated in Tenant's notice,
and notwithstanding any language contained herein
to the contrary. Tenant shall be released from
all liabilities hereunder upon such termination
by Landlord, subject to any terms and conditions
that expressly survive the termination or
expiration as contained this Lease. If, however,
this Lease shall terminate pursuant to the
foregoing with respect to less than all the
Premises, the rent, as defined and reserved
hereinabove and as adjusted pursuant to Paragraph
19(c), shall be adjusted on a pro rata basis to
the number of square feet retained by Tenant, and
this Lease as so amended shall continue
thereafter in full force and effect. If Landlord,
upon receiving said notice by Tenant with respect
to any of the Premises, shall not exercise its
right to terminate, Landlord may in its
reasonable discretion withhold or grant its
consent to Tenant's subletting the Premises
specified in said notice. Tenant shall, at
Tenant's own cost and expense, discharge in full
any outstanding commission obligation on the part
of Landlord with respect to this Lease, and any
commissions which may be due and owing as a
result of any proposed assignment or subletting,
whether or not the Lease is terminated pursuant
hereto and rented by Landlord to the proposed
subtenant or any other tenant. Tenant agrees to
pay to Landlord, promptly after request therefor,
(i) up to $1,000.00 of the amount of all
attorneys' fees and expenses incurred by Landlord
in connection with any assignment or subletting
issues or review of documentation relating
thereto, and (ii) $500.00 as an administrative
fee for Landlord's time and effort in connection
with any assignment or subletting issues.
(b) Any subletting or assignment hereunder
by Tenant shall not result in Tenant being
released or discharged from any liability under
this Lease, except in the event of termination by
Landlord as described in Paragraph 9(a). As a
condition to Landlord's prior written consent as
provided for in this paragraph, the assignee or
subtenant shall agree in writing to comply with
and be bound by all of the terms, covenants,
conditions, provisions and agreements of this
Lease, and Tenant shall deliver to Landlord
promptly after execution, an executed copy of
each sublease or assignment and an agreement of
said compliance by each sublessee or assignee.
Notwithstanding any provision to the contrary
contained herein, any subletting or assignment by
Tenant hereunder shall result in all rights of
first refusal, rights of first offer, rights to
expand, and renewal options granted herein being
forfeited by Tenant and its assignee or
subtenant. Tenant expressly acknowledges that
Landlord intends
8
for all of such rights to be personal and
exclusive to Tenant, and that such rights are not
subject to transfer to any other party.
(c) Except as otherwise set forth herein,
Landlord's consent to any sale, assignment
encumbrance, subletting, occupation, lien or
other transfer shall not release Tenant from any
of Tenant's obligations hereunder or be deemed to
be consent to any subsequent occurrence. Any
sale, assignment, encumbrance. subletting,
occupation, lien or other transfer of this Lease
which does not comply with the provisions of
this Paragraph 9 shall be void.
(d) For purposes of this Paragraph, an
assignment of stock or other direct or indirect
ownership interest in Tenant which constitutes a
controlling interest in Tenant shall be deemed an
assignment within the meaning of and be governed
by this Paragraph. Notwithstanding anything in
this Lease to the contrary, Tenant, on notice to
Landlord (but without Landlord's consent), may
assign the Lease or sublet, all or part of the
Premises to any of "Tenant's Affiliates",
Tenant's Affiliates shall mean any company
controlling, controlled by or under common
control with Tenant, whose net worth is greater
than or equal to Tenant's, as well as any entity
acquiring all or substantially all of Tenant's
assets. Upon an assignment as allowed under this
Paragraph 9(d), the original Tenant making such
assignment shall be released from its obligations
under the Lease. A transfer of an ownership
interest in Tenant shall not be deemed an
assignment of the Lease, but Tenant shall give
Landlord notice of any such transfer which
results in a change in control of Tenant.
(e) Notwithstanding any provision contained
herein, Tenant agrees that it shall not sell,
assign, encumber or otherwise transfer by
operation of law or otherwise this Lease or any
interest herein, or sublet the Premises or any
portion thereof, to any tenant who currently
leases space in the Building.
(f) If this Lease is assigned, or if the
Premises or any part thereof are sublet or
occupied by anyone other than Tenant during the
Lease Term (with or without Landlord's consent),
Landlord shall be entitled to fifty percent 50%
of all rents, fees and other considerations paid
by such subtenant, assignee or occupant with
respect to the assignment or subletting of the
Lease in excess of the rental specified in this
Lease.
10. INSURANCE AND 10. (a) Landlord shall not be liable to Tenant
INDEMNIFICATION. and Tenant hereby waives claims against Landlord
for any injury or damages to any person or
property in or about the Premises by or from any
cause whatsoever, without limiting the generality
of the foregoing, whether caused by water leakage
of any character from the roof, walls, basement,
or other portion of the Premises or the Building,
or caused by gas, fire, or explosion of the
Building or the complex of which it is a part or
any part thereof, except such waiver is not made
as to any injury or damages as aforedescribed
that are caused by Landlord's negligence or, or
any of its agents, contractors, servants,
employees and licensees. Except as otherwise
provided herein, Landlord shall hold Tenant
harmless from and defend and indemnify Tenant
against any and all claims or liability for any
injury or damage to any person or property
whatsoever: (i) occurring in, on or about the
Property or any part thereof. (ii) occuring in,
on, or about any facilities (including, without
limitation, elevators, stairways, passageways or
hallways), the use of which Tenant may have in
conjunction with other tenants of the Building,
to the extent such injury or damage shall be
caused in part or in whole by the act, neglect,
fault of, or omission of any duty with respect to
the same by Landlord, its agents, servants,
employees, or invitees. Landlord further agrees
to indemnify, defend and save harmless Tenant
against and from any and all claims in any manner
relating to any work or thing whatsoever done by
Landlord in or about, or any transactions of
Landlord concerning, the Property, and will
further indemnify, defend and save Tenant
harmless against and from any and all claims
arising from any breach or default on the part of
Landlord in the performance of any covenant or
agreement on the part of Landlord to be performed
pursuant to the terms of this Lease, or arising
from any act or negligence of Landlord, or any of
its agents, contractors, servants, employees and
licensees, and from and against all costs,
counsel fees, expenses and liabilities incurred
in connection with any such claim or action or
proceeding brought thereon. Furthermore, in case
any action or proceeding be brought against
Tenant by reason of any claims or liability
caused by Landlord as herein described. Landlord
agrees to defend such action or proceeding at
Landlord's sole expense by counsel reasonably
satisfactory to Landlord. The provisions of this
Lease with respect to any claims or liability
occurring prior to the termination or expiration
of this Lease shall expressly survive such
termination or expiration of this Lease.
(b) Except as otherwise provided herein.
Tenant shall hold Landlord harmless from and
defend and indemnify Landlord against any and all
claims or liability for any injury or damage to
any person or property whatsoever: (i) occurring
in, on or about the Premises or any part thereof,
(ii) occurring in, on, or about any facilities
(including, without limitation, elevators,
stairways, passageways or hallways), the use of
which Tenant may have in conjunction with other
tenants of the Building, to the extent such
injury or damage shall be caused in part or in
whole by the act, neglect, fault of, or omission
of any duty with respect to the same by Tenant,
9
its agents, servants, employees, or invitees.
Tenant further agrees to indemnify, defend and
save harmless Landlord against and from any and
all claims in any manner relating to any work or
thing whatsoever done by Tenant in or about, or
any transactions of Tenant concerning, the
Premises, and will further indemnify, defend and
save Landlord harmless against and from any and
all claims arising from any breach or default on
the part of Tenant in the performance of any
covenant or agreement on the part of Tenant to be
performed pursuant to the terms of this Lease, or
arising from any act or negligence of Tenant, or
any of its agents, contractors, servants,
employees and licensees, and from and against all
costs, counsel fees, expenses and liabilities
incurred in connection with any such claim or
action or proceeding brought thereon.
Furthermore, in case any action or proceeding be
brought against Landlord by reason of any claims
or liability caused by Tenant as described
herein. Tenant agrees to defend such action or
proceeding at Tenant's sole expense by counsel
reasonably satisfactory to Landlord. The
provisions of this Lease with respect to any
claims or liability occurring prior to the
termination or expiration of this Lease shall
expressly survive such termination or expiration
of this Lease.
(c) Tenant agrees to purchase at its own
expense and to keep in force during the term of
this Lease all insurance coverages required by
Landlord to be maintained by tenants in the
Building, including, but not limited to, the
policies of insurance specified on Exhibit "G"
attached to this Lease. Tenant's insurance must
be in force upon Tenant taking possession of the
Premises, or upon the Commencement Date,
whichever is earlier, and shall continue
throughout the Lease Term.
11. WAIVER OF SUBROGATION. 11. Each of Landlord and Tenant hereby releases
the other from any and all liability or
responsibility to the other or anyone claiming
through or under them by way of subrogation or
otherwise for any loss or damage to property
caused by fire or any other perils insured in
policies of insurance covering such property,
even if such loss or damage shall have been
caused by the fault or negligence of the other
party, or anyone for whom such party may be
responsible, including any other tenants or
occupants of the remainder of the Building in
which the Premises are located; provided,
however, that this release shall be applicable
and in force and effect only to the extent that
such release shall be lawful at that time and in
any event only with respect to loss or damage
occurring during such time as the releasor's
policies shall contain a clause or endorsement to
the effect that any such release shall not
adversely affect or impair said policies or
prejudice the right of the releasor to coverage
thereunder and then only to the extent of the
insurance proceeds payable under such policies.
Each of Landlord and Tenant agrees that it will
request its insurance carriers to include in its
policies such a clause or endorsement. If extra
cost shall be charged therefor, each party shall
advise the other thereof and of the amount of the
extra cost, and the other party, at its election,
may pay the same, but shall not be obligated to
do so. If such other party fails to pay such
extra cost, the release provisions of this
Paragraph shall be inoperative against such other
party to the extent necessary to avoid
invalidation of such releasor's insurance.
12. SERVICE & UTILITIES 12. (a) Landlord shall maintain and keep in good
repair the public and common areas of the
Building, and of the Property, including, without
limitation, the structure of the Building, roof,
lobbies, stairs, elevators, corridors and
restrooms, the windows in the Building, the
mechanical, plumbing, electrical and HVAC
equipment serving the Building, and the structure
itself, in reasonably good order and condition
except for damage occasioned by the act of
Tenant, which damage shall be repaired by
Landlord at Tenant's expense. In the event Tenant
requires or needs to have one or more separate
systems of either heating, ventilating, air
conditioning or other similar systems over and
above that provided by Landlord, the
installation, care, expenses and maintenance of
each such system shall be borne by and paid for
by Tenant. Notwithstanding any of the foregoing
language to the contrary, such additional systems
shall be delineated and specified in the Plans
and Specifications, otherwise after the
Commencement Date no additional expenses shall be
paid by Tenant hereunder unless Tenant makes
alterations to the Premises thereof that may give
rise to the necessity of any additional
installations which will be at Tenant's expense.
The parties acknowledge and agree that Landlord
shall install as part of Landlord's obligation to
deliver the "turnkey" Premises under the Work
Letter Agreement a supplemental air conditioning
unit over and above the Building standards and
that all costs associated with the installation
thereof shall be borne by Landlord and any
additional electrical consumption expense caused
by such installation shall be borne by Tenant.
(b) Subject to the provisions elsewhere
herein contained and to the rules and regulations
of the Building. Landlord agrees to furnish to
the Premises during ordinary business hours of 8
a.m. to 6 p.m. on Mondays through Fridays and 8
a.m. to 1 p.m. on Saturdays, (but exclusive, in
any event, of Sundays and legal holidays), heat
and air-conditioning required in Landlord's
judgment for the comfortable use and occupation
of the Premises, replacement of bulbs for
building standard fluorescent lights and
non-building standard lights, provided Tenant
stocks the bulbs for all of Tenant's non-building
standard lights, janitorial services during the
times and in the manner that such services are,
in Landlord's judgment, customarily furnished in
comparable office buildings in the immediate
market area, and elevator service.
10
Landlord shall make available additional or
after-hours heating or air-conditioning at
Tenant's request thereof and Tenant shall pay to
Landlord a reasonable charge for such services as
determined from time to time by Landlord; in its
reasonable discretion; the current rate for such
servicing is Thirty and No/lOOths Dollars
($30.00) per hour. Tenant agrees at all times to
cooperate fully with Landlord and to abide by all
the regulations and requirements which Landlord
may prescribe for the proper functioning and
protection of said heating, ventilating, and
air-conditioning system and to comply with all
laws, ordinances and regulations respecting the
conservation of energy. Wherever heat-generating
machines, excess lighting or equipment are
requested by Tenant and used in the Premises
which affect the temperature otherwise maintained
by the air-conditioning system. Landlord shall
install supplementary air conditioning units in
the Premises, and the cost thereof, including the
cost of electricity and/or water therefore, shall
be paid by Tenant to Landlord upon demand by
Landlord. Landlord agrees to furnish to the
Premises electricity for general and executive
office purposes and water for lavatory and
drinking purposes, subject to the provisions of
Paragraph 12(c) below. Landlord shall in no event
be liable for any interruption or failure of
utility services on the Premises, but Landlord
will exercise due diligence to furnish
uninterrupted service.
(c) Except as set forth in the Work Letter
Agreement and contemplated under, the Plans and
Specifications, Tenant will not, without the
written consent of Landlord, which consent
shall not be unreasonably withheld, use any
apparatus or device in the Premises, including
without limitation, electronic data processing
machines, computers, and machines using excess
lighting or current which will in any way
increase the amount of electricity or water
usually furnished or supplied for use of the
Premises as general office space; nor connect
with electric current, except through existing
electrical outlets in the Premises, or water
pipes, any apparatus or device for the purposes
of using electrical current or water. If Tenant
in Landlord's judgment shall require water or
electric current or any other resource in excess
of that usually furnished or supplied for use of
the Premises as general office space (it being
understood that such an excess may result from
the number of fixtures, apparatus and devices in
use, the nature of such fixtures, apparatus and
devices, the hours of use, or any combination of
such factors), Tenant shall first procure the
consent of Landlord, which consent shall not be
unreasonably withheld, which Landlord may refuse,
to the use thereof, and Landlord may cause a
special meter to be installed in the Premises so
as to measure the amount of water, electric
current or other resource consumed for any such
other use, The cost of any such meters and of
installation, maintenance, and repair thereof
shall be paid for by Tenant, and Tenant agrees to
pay Landlord promptly upon demand by Landlord for
all such water, electric current or other
resource consumed, as shown by said meters, at
the rates charged by the local public utility
furnishing the same, plus any additional expense
incurred in keeping account of the water,
electric current or other resource so consumed.
Landlord shall not be in default hereunder or be
liable for any damages directly or indirectly
resulting from, nor shall the rental herein
reserved be abated by reason of (i) the
installation, use or interruption of use of any
equipment in connection with the furnishing of
any of the foregoing utilities and services, (ii)
failure to furnish or delay in furnishing any
such utilities or services when such failure or
delay is caused by acts of God or the elements,
labor disturbances of any character, any other
accidents, acts of terrorism, or other conditions
beyond the reasonable control of Landlord, or by
the making of repairs or improvements to the
Premises or to the Building, (iii) the
limitation, curtailment, rationing or restriction
on use of water or electricity, gas or any other
form of energy or any other service utility
whatsoever serving the Premises or the Building.
Furthermore, Landlord shall be entitled to
cooperate voluntarily in a reasonable manner with
the efforts of national, state or local
governmental agencies or utilities suppliers in
reducing energy or other resources consumption.
(d) Any sums payable under this Paragraph 12
shall be considered additional rent and may be
added to any installment of rent thereafter
becoming due, and Landlord shall have the same
remedies for a default in payment of such sums as
for a default in the payment of rent.
(e) Tenant shall not provide any janitorial
services without Landlord's written consent,
which consent shall not be unreasonably withheld,
and then only subject to supervision of Landlord
and by a janitorial contractor or employees at
all times satisfactory to Landlord. Any such
services provided by Tenant shall be at Tenant's
sole risk and responsibility.
(f) It shall be Tenant's responsibility and
expense to install, move, maintain, adjust, and
repair its property and fixtures, including but
not limited to, its; signage, pictures, bulletin
boards, plaques, furniture, filing cabinets,
computer cables, computer equipment, business
machines, draperies, blinds, kitchen appliances,
special water heaters, kitchen cabinets, private
restroom fixtures, special air conditioning or
power conditioning equipment, locks for furniture
and filing cabinets, paging systems, modular
furniture components (including task lighting,
flat wiring, and power distribution cables),
combination locks, specialty electrical devices,
exhaust fans, fire extinguishers, carpet squares,
and/or other furniture, fixtures, or equipment
installed by
11
Tenant, or which were supplied, specified, or
requested by Tenant and installed by Landlord.
13. ESTOPPEL CERTIFICATE. 13. Within fourteen (14) days of Landlord's
written request which Landlord may make from time
to time, Tenant shall execute and deliver to
Landlord a certificate in substantially the form
attached hereto as Exhibit "C" and made a part
hereof (except revised by Landlord as provided
below to reflect the terms and conditions
hereof), indicating thereon any exceptions
thereto which may exist at that time; Landlord
shall revise such certificate to conform to the
terms and conditions of this lease and to the
extent that there is any conflict between the
terms of the Tenant such certificate and this
Lease, the terms and conditions of the Lease
shall control. Failure of Tenant to execute and
deliver such certificate shall at Landlord's
option constitute a default hereunder or
constitute an acceptance of the Premises and
acknowledgment by Tenant that the statements
included in Exhibit "C" are true and correct
without exception. Landlord and Tenant intend
that any statement delivered pursuant to this
paragraph may be relied upon by Landlord or by
any mortgagee, beneficiary, purchaser or
prospective purchaser of the Building or any
interest therein or anyone to whom Landlord may
provide said certificate.
14. HOLDING OVER. 14. Tenant will at the termination of this Lease
by lapse of time or otherwise, yield up immediate
possession to Landlord. If Tenant retains
possession of the Premises or any part thereof
after such termination, then Landlord may, at its
option, serve written notice upon Tenant that
such holding over constitutes any one of (ii)
creation of a month to month tenancy, upon the
terms and conditions set forth in this Lease, or
(ii) creation of a tenancy of sufferance, in any
case upon the terms and conditions set forth in
this Lease; provided, however, that the monthly
rental (or daily rental under (ii)) shall, in
addition to all other sums which are to be paid
by Tenant hereunder, whether or not as additional
rent, be equal to One Hundred and Fifty Percent
(150%) of the rental being paid monthly to
Landlord under this Lease immediately prior to
such termination (prorated in the case of (iii)
on the basis of a 365 day year for each day
Tenant remains in possession). If no such notice
is served, then a tenancy at sufferance shall be
deemed to be created at the rent in the preceding
sentence. The provisions of this paragraph shall
not constitute a waiver by Landlord of any right
of reentry as herein set forth; nor shall receipt
of any rent or any other act in apparent
affirmance of the tenancy operate as a waiver of
the right to terminate this Lease for a breach of
any of tbe terms, covenants, or obligations
herein on Tenant's part to be performed.
15. SUBORDINATION. 15. Without the necessity of any additional
document being executed by Tenant for the purpose
of effecting a subordination, this Lease shall be
subject and subordinate at all times to (so long
as there exists a non disturbance agreement of
Tenant conditioned upon Tenant's attornment
thereof): (a) all ground leases or underlying
leases which may now exist or hereafter be
executed affecting the Building, the land upon
which the Building or any common areas are
situated, and (b) the lien or interest of any
mortgage or deed to secure debt which may now
exist or hereafter be executed in any amount for
which said Building, land, ground leases or
underlying leases, or Landlord's interest or
estate in any of said items is specified as
security Landlord shall have the right to
subordinate or cause to be subordinated any such
ground leases or underlying leases or any such
liens or interests of mortgages or deeds to
secure debt to this Lease. In the event that any
ground lease or underlying lease terminates for
any reason or any mortgage or deed to secure debt
is foreclosed or a conveyance in lieu of
foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination, attorn to and
become the Tenant of the successor in interest to
Landlord at the option of such successor in
interest. Tenant agrees to execute such
non-disturbance and attornment agreements as the
holder of any mortgage or deed to secure debt on
the Building may reasonably require. Tenant
covenants and agrees to execute and deliver, upon
demand by Landlord and in the form requested by
Landlord, any additional documents evidencing the
priority or subordination of this Lease with
respect to any such ground leases or underlying
leases or the lien of any such mortgage or deed
to secure debt. Tenant hereby irrevocably
appoints Landlord as attorney-in-fact of Tenant
to execute, deliver and record any such documents
in the name and on behalf of Tenant.
16. RE-ENTRY 16. Landlord reserves and shall at all times have
BY LANDLORD. the right to re-enter the Premises to inspect the
same, to supply janitor service and any other
service to be provided by Landlord to Tenant
hereunder, to show said Premises to prospective
purchasers, mortgagees or tenants, to post
notices of nonresponsibility, and to alter,
improve, or repair the Premises and any portion
of the Building of which the Premises are a part
or to which access is conveniently made through
the Premises, without abatement of rent, and may
for that purpose erect, use, and maintain
scaffolding, pipes, conduits, and other necessary
structures in and through the Premises where
reasonably required by the character of the work
to be performed, provided that entrance to the
Premises shall not be blocked thereby, and
further provided that the business of Tenant
shall not be interfered with unreasonably. Tenant
hereby waives any claim for damages for any
injury or inconvenience to or interference with
Tenant's
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business, any loss of occupancy or quiet
enjoyment of the Premises, and any other loss
occasioned thereby. For each of the aforesaid
purposes, Landlord shall at all times have and
retain a key with which to unlock all of the
doors, in, upon, and about the Premises, and
Landlord shall have the right to use any and all
means which Landlord may deem necessary or proper
to open said doors in an emergency, in order to
obtain entry to any portion of the Premises, and
any entry to the Premises, or portions thereof
obtained by Landlord by any of said means, or
otherwise, shall not under any circumstances be
construed or deemed to be a forcible or unlawful
entry into, or a detainer of, the Premises, or an
eviction, actual or constructive, of Tenant from
the Premises or any portions thereof. Landlord
shall also have the right at any time, without
the same constituting an actual or constructive
eviction and without incurring any liability to
Tenant therefor, to change the arrangement and/or
location of entrances or passage ways, doors and
doorways, and corridors, elevators, stairs,
toilets, or other public parts of the Building
and to change the name, number or designation by
which the Building is commonly known.
17. INSOLVENCY OR 17. The appointment of a receiver to take
BANKRUPTCY. possession of all or substantially all of the
assets of Tenant, or an assignment of Tenant for
the benefit of creditors, or any action taken or
suffered by Tenant under any insolvency,
bankruptcy, or reorganization act, shall at
Landlord's option constitute a breach of this
Lease by Tenant. Upon the happening of any such
event or at any time thereafter, this Lease shall
terminate five (5) days after written notice of
termination from Landlord to Tenant. In no event
shall this Lease be assigned or assignable by
operation of law or by voluntary or involuntary
bankruptcy proceedings or otherwise and in no
event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under
any bankruptcy, insolvency, or reorganization
proceedings.
18. DEFAULT AND REMEDIES. 18. the following events shall be deemed to be
events of default by Tenant under this Lease:
(a) After written notice by Landlord of
Tenant's failure to pay when or before due any
sum of money becoming due to be paid to Landlord
hereunder, whether such sum be any installment of
the rent herein reserved, any other amount
treated as additional rent hereunder, or any
other payment or reimbursement to Landlord
required herein, whether or not treated as
additional rent hereunder, and such failure shall
continue for a period of five (5) days from the
date of Tenant's receipt of such notice by
Landlord; or
(b) Tenant shall fail to comply with any
term, provision or covenant of this Lease other
than by failing to pay when or before due any sum
of money becoming due to be paid to Landlord
hereunder, and shall not cure such failure within
(i) twenty four (24) hours after written notice to
Tenant if the failure involves a condition
hazardous or dangerous to life or property or
(ii) thirty (30) days after written notice to
Tenant in the case of any other failure and if
not curable within such thirty (30) day period,
within a period of time commensurate with the non
monetary default so long as Tenant commences the
cure thereof and continues diligently until
cured; or
(c) Tenant shall abandon or vacate any
substantial portion of the Premises and defaults
in the payment of any sums of money due
hereunder; or
(d) Tenant shall fail within fourteen (14)
days of receipt of written notice thereof from
Landlord, to cure any condition or circumstance
created or allowed by Tenant in its use of the
Premises constituting a hazard to people or
property, whether or not such condition or
circumstance rises to the level of a civil or
criminal law violation or action; or
(e) Tenant shall fail to vacate the Premises
immediately upon termination of this Lease, by
lapse of time or otherwise, or upon termination
of Tenant's right to possession only;
(f) If, inspite of the provisions hereof,
the interest of Tenant shall be levied upon under
execution or be attached by process of law or
Tenant shall fail to contest diligently the
validity of any lien or claimed lien and give
sufficient security to Landlord to insure payment
thereof or shall fail to satisfy any judgment
rendered thereon and have the same released, and
such default shall continue for thirty (30)
days after written notice thereof to Tenant; or
(g) Tenant shall assign, sublet or transfer
its interest hereunder in violation of this
Agreement.
Upon the occurrence of any such events of
default by Tenant described in this paragraph or
elsewhere in this Lease, Landlord shall have the
option to pursue any one or more of the following
remedies without any notice or demand whatsoever:
(aa) Landlord may, at its election,
terminate this Lease or terminate Tenant's right
to possession only, without terminating the
Lease.
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(bb) Upon any termination of this
Lease, whether by lapse of time or otherwise, or
upon any termination of Tenant's right to
possession without termination of the Lease,
Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession
thereof to Landlord, and Tenant hereby grants to
Landlord full and free license to enter into and
upon the Premises in such event with or without
process of law and to repossess the Premises and
to expel or remove Tenant and any others who may
be occupying or within the Premises and to remove
any and all property therefrom, without being
deemed in any manner guilty of trespass, eviction
or forcible entry or detainer, and without
incurring any liability for any damage resulting
therefrom; Tenant hereby waiving any right to
claim damage for such reentry and expulsion, and
without relinquishing Landlord's right to rent or
any other right given to Landlord hereunder or by
operation of law.
(cc) Upon termination of this Lease,
whether by lapse of time, by or in connection
with a dispossessory proceeding or otherwise,
Landlord shall be entitled to recover as
Landlord's actual accrued damages, all rent,
including any amount treated as additional rent
hereunder, and other sums due and payable by
Tenant on the date of termination, plus, as
Landlord's liquidated damages for the balance of
the stated term hereof and not as a forfeiture or
penalty, the sum of: (i) an amount equal to the
then present value of the rent, including any
amounts treated as additional rent hereunder, and
other sums provided herein to be paid by Tenant
for the residue of the stated term hereof, less
the fair rental value of the Premises for such
residue (taking into account the time and
expenses necessary to obtain a replacement tenant
or tenants, including expenses hereinafter
described in Paragraph (dd)(ii) relating to
recovery of the Premises, preparation for
reletting and for reletting itself), and (ii) the
cost of performing any other covenants which
would have otherwise been performed by Tenant.
(dd) (i) Upon termination of the Lease
or Tenant's right to possession of the demised
Premises, regardless of whether such termination
occurs as a result of a dispossessory proceeding,
distraint proceeding, exercise of right of
termination, re-entry, lease expiration or
otherwise. Tenant shall remain liable for payment
of all rent thereafter accruing and for
performance of all obligations thereafter
performable under this Lease. Landlord may, at
Landlord's option, enter the Premises, remove
Tenant's signs and other evidences of tenancy,
and take and hold possession thereof as provided
in Paragraph (bb) above, without such entry and
possession releasing Tenant from any obligation,
including Tenant's obligation to pay rent,
including any amounts treated as additional rent,
hereunder for the full term of the Lease.
(ii) Landlord may, but need not,
relet the Premises or any part thereof for such
rent and upon such terms as Landlord in its sole
discretion shall determine (including the right
to relet the Premises for a greater or lesser
term than that remaining under this Lease, the
right to relet the Premises as a part of a larger
area, and the right to change the character and
use made of the Premises) and Landlord shall not
be required to accept any tenant offered by
Tenant or to observe any instructions given by
Tenant about such reletting. In any such case,
Landlord may make repairs, alterations and
additions in or to the Premises, and redecorate
the same to the extent Landlord deems necessary
or desirable, and Tenant shall, upon demand, pay
the cost thereof, together with Landlord's
expenses for reletting, including, without
limitation, any brokers commission incurred by
Landlord. If the consideration collected by
Landlord upon any such reletting plus any sums
previously collected from Tenant are not
sufficient to pay the full amount of all rent,
including any amounts treated as additional rent
hereunder and other sums reserved in this Lease
for the remaining term hereof, together with the
costs of repairs, alterations, additions,
redecorating, and Landlord's expenses of
reletting and the collection of the rent accruing
therefrom (including attorneys' fees and broker's
commissions), Tenant shall pay to Landlord, as
Landlord's liquidated damages and not as a
forfeiture or penalty, the amount of such
deficiency upon demand and Tenant agrees that
Landlord may file suit to recover any sums
falling due under this Paragraph from time to
time.
(ee) Landlord may, at Landlord's
option, enter into and upon the Premises, with or
without process of law, if Landlord determines in
its sole discretion that Tenant is not acting
within a commercially reasonable time to
maintain, repair or replace anything for which
Tenant is responsible hereunder, and correct the
same, without being deemed in any manner guilty
of trespass, eviction or forcible entry and
detainer and without incurring any liability for
any damage resulting therefrom, and Tenant agrees
to reimburse Landlord, on demand, as additional
rent, for any expenses which Landlord may incur
in thus effecting compliance with Tenant's
obligations under this Lease.
(ff) Any and all property which may be
removed from the Premises by Landlord pursuant to
the authority of the Lease or of law, to which
Tenant is or may be entitled, may be handled,
removed and stored, as the case may be, by or at
the direction of Landlord at the risk, cost and
expense of Tenant, and Landlord shall in no event
be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to
Landlord, upon demand, any and all expenses
incurred in such removal and all storage charges
against such property so long as the same
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shall be in Landlord's possession or under
Landlord's control. Any such property of Tenant
not retaken by Tenant from storage within thirty
(30) days after removal from the Premises shall,
at Landlord's option, be deemed conveyed by
Tenant to Landlord under this Lease as by a ▇▇▇▇
of sale without further payment or credit by
Landlord to Tenant.
Pursuit of any of the foregoing remedies
shall not preclude pursuit of any of the other
remedies herein provided or any other remedies
provided by law or available in equity (all such
remedies being cumulative), nor shall pursuit of
any remedy herein provided constitute a
forfeiture or waiver of any rent due to Landlord
hereunder or of any damages accruing to Landlord
by reason of the violation of any of the terms,
provisions and covenants herein contained. No act
or thing done by Landlord or its agents during
the term hereby granted shall be deemed a
termination of this Lease or an acceptance of the
surrender of the Premises, and no agreement to
terminate this Lease or accept a surrender of
said Premises shall be valid unless in writing
signed by Landlord. No waiver by Landlord of any
violation or breach of any of the terms,
provisions and covenants herein contained shall
be deemed or construed to constitute a waiver of
any other violation or breach of any of the
terms, provisions and covenants herein contained.
Landlord's acceptance of the payment of rental or
other payments hereunder after the occurrence of
an event of default shall not be construed as a
waiver of such default, unless Landlord so
notifies Tenant in writing. Forbearance by
Landlord in enforcing 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 or of Landlord's right to enforce
any such remedies with respect to such default or
any subsequent default. If, on account of any
breach or default by Tenant in Tenant's
obligations under the terms and conditions of
this Lease, it shall become necessary or
appropriate for Landlord to employ or consult
with an attorney concerning or to enforce or
defend any of Landlord's rights or remedies
hereunder, Tenant agrees to pay reasonable
attorneys' fees so incurred.
Without limiting the foregoing, to the
extent permitted by law, Tenant hereby, expressly
waives any right to trial by jury. Landlord shall
serve any service of process as required by
existing or future law of the State of Georgia
upon any of the persons listed under the notice
provision for Tenant.
Landlord's Default. Upon Landlord's failure or
refusal to perform any of the provisions or
conditions of this Lease on Landlord's part to be
kept or performed or any other covenants and
obligations of Landlord which Landlord fails to
satisfy, for thirty (30) days after written
notice to Landlord by Tenant of such failure or
refusal shall be a default under this Lease,
provided that if such that if such default
complained of in the notice by Tenant to Landlord
is of such a nature that the same can be
rectified or cured by Landlord, but cannot with
reasonable diligence be rectified or cured within
said thirty (30) day period, then Landlord shall
not be in default if Landlord promptly commences
the rectification and curing thereof and
continues thereafter with all due diligence to
cause such rectification and curing to proceed,
and does complete the same, with the use of due
diligence, as aforesaid. In the even Landlord is
in default as aforedescribed, then Tenant shall
have the option to pursue all remedies in law or
in equity for Landlord's default hereunder.
19. DAMAGE BY FIRE, ETC. 19. (a) If the Building, improvements, or
Premises are rendered partially or wholly
untenantable by fire or other casualty, and if
such damage cannot, in Landlord's reasonable
estimation, be materially restored within ninety
(90) days of such damage, then Landlord or Tenant
may, at either of their sole options, terminate
this Lease as of the date of such fire or
casualty. Landlord or Tenant shall exercise its
option provided herein by written notice to the
other party within sixty (60) days of such fire
or other casualty. For purposes hereof, the
Building, improvements, or Premises shall be
deemed "materially restored" if they are in such
condition as would not prevent or materially
interfere with Tenant's use of the Premises for
the purpose for which it was then being used.
(b) If this Lease is not terminated pursuant
to Paragraph 19(a) and insurance proceeds are
confirmed by Landlord to be available within said
ninety (90) day period, then, Landlord shall
proceed with all due diligence to repair and
restore the Building, improvements or Premises,
within one hundred and eighty (l80) days of such
fire or casualty (except that Landlord may elect
not to rebuild if such damage occurs during the
last year of the term of this Lease exclusive of
any option which is unexercised at the date of
such damage).
(c) If this Lease shall be terminated
pursuant to this Paragraph 19, the term of this
Lease shall end on the date of such damage as if
that date had been originally fixed in this Lease
for the expiration of the term hereof. If this
Lease shall not be terminated by Landlord
pursuant to this Paragraph 19 and if the Premises
is untenantable in whole or in part following
such damage, the rent payable during the period
in which the Premises is untenantable shall be
reduced to such extent, if any, as may be fair
and reasonable under all of the circumstances. In
the event that Landlord shall fail to complete
such repairs and material restoration within one
15
hundred fifty (150) days after the date of such
damage, Tenant may at its option and as its sole
remedy terminate this Lease by delivering written
notice to Landlord, whereupon the Lease shall end
on the date of such notice as if the date of such
notice were the date originally fixed in this
Lease for the expiration of the term hereof;
provided, however, that if construction is
delayed because of changes, deletions, or
additions in construction requested by Tenant,
strikes, lockouts, casualties, acts of God, war,
material or labor shortages, governmental
regulation or control or other causes beyond the
reasonable control of Landlord, the period for
restoration, repair or rebuilding shall be
extended for the amount of time Landlord is so
delayed.
In no event shall Landlord be required to
rebuild, repair or replace any part of the
partitions, fixtures, additions or other
improvements which may have been placed in or
about the Premises by Tenant. Any insurance which
may be carried by Landlord or Tenant against loss
or damage to the Building or Premises shall be
for the sole benefit of the party carrying such
insurance and under its sole control except that
Landlord's insurance may be subject to control by
(i) the holder or holders of any indebtedness
secured by a mortgage or deed to secure debt
covering any interest of Landlord in the
Premises, the Building, or the Property, and/or
(ii) the ground lessor of any portion of the
Property.
(d) Notwithstanding anything herein to the
contrary, in the event the holder of any
indebtedness secured by a mortgage or deed to
secure debt covering the Premises, Building or
Property, or the ground lessor of the Property,
requires that any insurance proceeds be paid to
it, then Landlord shall have the right to
terminate this Lease by delivering written notice
of termination to Tenant within fifteen (15) days
after such requirement is made by any such person
but in no event any later than the sixty (60) day
period required under Paragraph 19(a), whereupon
the Lease shall end on the date of such damage as
if the date of such damage were the date
originally fixed in this Lease for the expiration
of the term.
(e) In the event of any damage or
destruction to the Building or the Premises by
any peril covered by the provisions of this
Paragraph 19, Tenant shall, upon notice from
Landlord, remove forthwith, at its sole cost and
expense, such portion or all of the property
belonging to Tenant or its licensees from such
portion or all of the Building or the Premises as
Landlord shall request.
20. CONDEMNATION. 20. (a) If any substantial part of the Premises
should be taken for any public or quasi-public
use under governmental law, ordinance or
regulation, or by right of eminent domain, or by
private purchase in lieu thereof, and the taking
would prevent or materially interfere with the
use of the Premises for the purpose for which it
is then being used, this Lease shall terminate
effective when the physical taking shall occur
in the same manner as if the date of such taking
were the date originally fixed in this Lease for
the expiration of the term hereof. As used
herein, "substantial part" shall mean more than
twenty percent (20%).
(b) If part of the Premises shall be taken
for any public or quasi-public use under any
governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase
in lieu thereof, and this Lease is not terminated
as provided in Paragraph above, this Lease shall
not terminate but the rent payable hereunder
during the unexpired portion of this Lease shall
be reduced to such extent, if any, as may be fair
and reasonable under all of the circumstances and
Landlord shall undertake to restore the Premises
to a condition suitable for Tenant's use, as near
to the condition thereof immediately prior to
such taking as is reasonably feasible under all
circumstances.
(c) Tenant shall not share in any
condemnation award or payment in lieu thereof or
in any award for damages resulting from any grade
change of adjacent streets, the same being hereby
assigned to Landlord by Tenant; provided,
however, that Tenant may separately claim and
receive from the condemning authority, if legally
payable, compensation for Tenant's removal and
relocation costs and for Tenant's loss of
business and/or business interruption.
(d) Notwithstanding anything to the contrary
contained in this paragraph, if the temporary use
or occupancy of any part of the Premises shall be
taken or appropriated under power of eminent
domain during the term of this Lease, 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 term of this Lease; 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 use of or
occupancy of the Premises during the term of this
Lease, and Landlord shall be entitled to receive
that portion of any award which represents the
cost of restoration of the Premises and the use
and occupancy of the Premises after the end of
the term of this Lease.
21. SALE BY LANDLORD. 21. In the event of a sale or conveyance by
Landlord of the Building, the same shall operate
to release Landlord from any future liability
upon any of the covenants or conditions, express
or implied, herein contained in favor of Tenant
so long as Landlord assigns all rights, title and
interest under this Lease to the new owner
16
thereof and said new owner assumes all
obligations of Landlord hereunder, and in such
event Tenant agrees to look solely to the
responsibility of the successor in interest of
Landlord in and to this Lease. Tenant agrees to
attorn to the purchaser or assignee in any such
sale.
22. RIGHT OF LANDLORD TO
PERFORM. 22. All covenants and agreements to be performed
by Tenant under any of the terms of this Lease
shall be performed by Tenant at Tenant's sole
cost and expense and without any abatement of
rent except as otherwise provided herein. If
Tenant shall fail to perform any acts, covenants
or agreements to be performed by Tenant under any
of the terms of this Lease or to pay any sum of
money, other than rent, required to be paid by it
hereunder, and such failure shall not be cured by
Tenant within the time periods prescribed under
Paragraph 18 hereof after notice thereof by
Landlord, Landlord may, but shall not be
obligated so to do, and without waiving or
releasing Tenant from any obligations of Tenant,
make any such payment or perform any such act,
covenant or agreement on Tenant's part to be made
or performed as in this Lease provided. All sums
so paid by Landlord or costs related to
Landlord's performance of such acts, covenants or
agreements and all necessary incidental costs,
together with interest thereon at the Agreed
Interest Rate as defined in Paragraph 8 hereof
from the date of such payment by Landlord, shall
be payable as additional rent to Landlord on
demand, and Tenant covenants to pay any such
sums, and Landlord shall have, in addition to any
other right or remedy of the Landlord, the same
rights and remedies in the event of nonpayment
thereof by Tenant as in the case of default by
Tenant in the payment of the rent.
23. SURRENDER OF PREMISES. 23. (a) In the event Landlord furnishes a request
in writing to Tenant within the last six (6)
months of the Term of the Lease or any renewal
thereof that Tenant advise Landlord of Tenant's
intentions with regard to the vacating of the
Premises upon the termination of this Lease, then
Tenant shall respond to such request of Landlord
within a reasonable time thereafter.
(b) At the end of the Lease Term, Tenant
agrees to peaceably deliver up to the Landlord
possession of the Premises, in the same condition
as received on the Commencement Date, ordinary
wear and tear, damage by fire, earthquake, and
other acts of God excepted. Upon request by
Landlord, unless otherwise agreed to in writing
by Landlord, Tenant shall remove, at Tenant's
sole cost, any or all movable furniture,
equipment and fixtures, (expressly excluding,
computer and telephone cabling and all work to
the Premises pursuant to the Work Letter
Agreement and all alterations to the Premises
allowed by Landlord hereunder), belonging to
Tenant and repair any damage resulting from such
removal. Any property not so removed shall be
deemed abandoned by the Tenant, and title to the
same shall thereupon pass to Landlord. Landlord
shall have the right to remove and dispose of
such abandoned property, and the costs associated
therewith shall be promptly reimbursed by Tenant.
(c) The voluntary or other surrender of this
Lease by Tenant, or a mutual cancellation
thereof, shall not work a merger, and shall, at
the option of the Landlord, terminate all or any
existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment
to it of any or all such subleases or
subtenancies.
24. WAIVER. 24. If either Landlord or Tenant waives the
performance of any term, covenant or condition
contained in this Lease, such waiver shall not be
deemed to be a waiver of any subsequent breach of
the same or any other term, covenant or condition
contained herein. Furthermore, the acceptance of
rent by Landlord shall not constitute a waiver of
any preceding breach by Tenant of any term,
covenant or condition of this Lease, regardless
of Landlord's knowledge of such preceding breach
at the time Landlord accepted such rent. Failure
by Landlord to enforce any of the terms,
covenants or conditions of this Lease for any
length of time shall not be deemed to waive or to
decrease the right of Landlord to insist
thereafter upon strict performance by Tenant.
Waiver by Landlord of any term, covenant or
condition contained in this Lease may only be
made by a written document signed by Landlord.
25. NOTICES. 25. Whenever any notice, demand or request is
required or permitted hereunder, such notice,
demand or request shall be hand-delivered in
person, by reputable courier service or sent by
United States Mail, registered, postage prepaid,
to the addresses set forth below
If to Landlord: Galleria 600, LLC
c/o Childress ▇▇▇▇▇ Properties
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
17
If to Tenant: The Ultimate Software Group. Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇ ▇▇▇▇▇▇
And
The Ultimate Software Group. Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: General Counsel
Any notice, demand or request which shall be
served upon either of the parties in the manner
aforesaid shall be deemed sufficiently given for
all purposes hereunder (i) at the time such
notices, demands or requests are hand-delivered
in person or (ii) on the third day after the
mailing of such notices, demands or requests in
accordance with the preceding portion of this
paragraph.
Either Landlord or Tenant shall have the
right from time to time to designate by written
notice to the other party such other places in
the United States as Landlord or Tenant may
desire written notice to be delivered or sent in
accordance herewith; provided, however, at no
time shall either party be required to send more
than an original and two copies of any such
notice, demand or request required or permitted
hereunder.
Notwithstanding the foregoing, all rental
payments under this Lease shall be sent to the
address specified in paragraph 2(a) above.
26. CERTAIN RIGHTS RESERVED 26. Landlord reserves and may exercise the
TO THE LANDLORD. following rights without affecting Tenant's
obligations hereunder:
(a) To change the name of the Building;
(b) To designate all sources furnishing
sign painting and lettering, ice, drinking water,
towels, coffee cart service and toilet supplies,
lamps and bulbs used in the Premises;
(c) To retain at all times pass keys to the
Premises;
(d) To grant to anyone the exclusive right
to conduct any particular business or undertaking
in the Building;
(e) To close the Building after regular work
hours and on legal holidays subject, however, to
Tenant's right to admittance, under such
reasonable regulations as Landlord may prescribe
from time to time, which may include by way of
example but not of limitation, that persons
entering or leaving the Building register and
provide sufficient forms of identification to a
watchman and that said persons establish their
right to enter or leave the Building; and
(f) To take any and all measures, including
inspections, repairs, alterations, decorations,
additions and improvements to the Premises or the
Building, and identification and admittance
procedures for access to the Building as may be
necessary or desirable for the safety,
protection, preservation or security of the
Premises or the Building or Landlord's interest,
or as may be necessary or desirable in the
operation of the Building.
Landlord may enter upon the Premises and may
exercise any or all of the foregoing rights
hereby reserved without being deemed guilty of an
eviction or disturbance of Tenant's use or
possession and without being liable in any manner
to Tenant and without abatement of rent or
affecting any of Tenant's obligations hereunder.
27. ABANDONMENT. 27. If Tenant shall abandon, vacate, or surrender
said Premises and fail to continue with all
monetary payments' due hereunder after notice and
opportunity to cure such non payment or be
dispossessed by process of law, or otherwise, any
personal property belonging to Tenant and left on
the Premises shall, at the option of Landlord, be
deemed to be abandoned and title thereto shall
thereupon pass to Landlord.
28. SUCCESSORS AND ASSIGNS. 28. Subject to the provisions of Paragraph 9
hereof, the terms, covenants, and conditions
contained herein shall be binding upon and inure
to the benefit of the heirs, successors,
executors, administrators and assigns of the
parties hereto.
29. ATTORNEYS' FEES. 29. In the event that any action or proceeding is
brought to enforce any term, covenant or
condition of this Lease on the part of Landlord
or Tenant, the prevailing party in such
litigation shall be entitled to reasonable
attorneys' fees to be fixed by the Court in such
action or proceeding.
30. CORPORATE AUTHORITY. 30. If Tenant signs as a corporation, each of the
persons executing this Lease on behalf of Tenant
does hereby covenant and warrant that Tenant is a
duty authorized and existing corporation, that
Tenent has and is qualified to do business in
Georgia,
18
that the corporation has full right and authority
to enter into this Lease, and that each and both
of the persons signing on behalf of the
corporation were authorized to do so. Upon
Landlord's request, Tenant shall provide Landlord
with evidence reasonably satisfactory to Landlord
confirming the foregoing covenants and
warranties. If Tenant signs as any other legal
entity, Tenant shall provide Landlord with
reasonable evidence of authority.
31. MORTGAGE APPROVALS. 31. Any provisions of this Lease requiring the
approval or consent of Landlord shall not be
deemed to have been unreasonably withheld if any
mortgagee (which shall include the holder of any
deed to secure debt) of the Premises, Building or
Property or any portion thereof shall refuse or
withhold its approval or consent thereto. Any
requirement of Landlord pursuant to this Lease
which is imposed pursuant to the direction of any
such mortgagee shall be deemed to have been
reasonably imposed by Landlord if made in good
faith.
32. MISCELLANEOUS. 32. (a) The paragraph headings herein are for
convenience of reference and shall in no way
define, increase, limit, or describe the scope or
intent of any provision of this Lease. The term
"Landlord" as used in this Lease shall include
the Landlord, its successors and assigns. In any
case where this Lease is signed by more than one
person, the obligations hereunder shall be joint
and several. The term "Tenant" or any pronoun
used in place thereof shall indicate and include
the masculine or feminine, the singular or plural
number, individuals, firms or corporations, and
each of their respective successors, executors,
administrators, and permitted assigns, according
to the context hereof.
(b) Time is of the essence of this Lease and
all of its provisions. This Lease shall in all
respects be governed by the laws of the State of
Georgia. This Lease, together with its exhibits,
contains all the agreements of the parties hereto
and supersedes any previous negotiations. There
have been no representations made by the Landlord
or understandings made between the parties other
than those set forth in this Lease and its
exhibits. This Lease may not be modified except
by a written instrument by the parties hereto.
(c) If for any reason whatsoever any of the
provisions hereof shall be unenforceable or
ineffective, all of the other provisions shall be
and remain in full force and effect.
(d) All obligations of Tenant hereunder not
fully performed as of the expiration or earlier
termination of the term at this Lease shall
survive the expiration or earlier termination of
the term hereof.
(e) If any clause, phrase, provision or
portion of this Lease or the application thereof
to any person or circumstance shall be invalid or
unenforceable under applicable law, such event
shall not affect, impair or render invalid or
unenforceable the remainder of this Lease or any
other clause, phrase, provision or portion
hereof, nor shall it affect the application of
any clause, phrase, provision or portion hereof
to other persons or circumstances, and it is
also the intention of the parties to this Lease
that in lieu of each such clause, phrase,
provision or portion of this Lease that is
invalid or unenforceable, there be added as a
part of this Lease a clause, phrase, provision or
portion as similar in terms to such invalid or
unenforceable clause, phrase, provision or
portion as may be possible and be valid and
enforceable.
(f) Whenever a period of time is herein
prescribed for action to be taken by Landlord,
the Landlord shall not be liable or responsible
for, and there shall be excluded from the
computation for any such period of time, any
delays due to causes of any kind whatsoever which
are beyond the control of Landlord.
(g) This Paragraph is intentionally deleted
in its entirety.
33. LANDLORD'S LIEN. 33. This Paragraph is intentionally deleted in
its entirety.
34. QUIET ENJOYMENT. 34. Landlord represents and warrants that it has
full right and authority to enter into this Lease
and that Tenant, while paying the rental and
performing its other covenants and agreements
herein set forth, shall peaceably and quietly
have, hold and enjoy the Premises for the term
hereof without hindrance or molestation from
Landlord subject to the terms and provisions of
this Lease. In the event this Lease is a
sublease, then Tenant agrees to take the Premises
subject to the provisions of the prior leases.
Landlord shall not be liable for any
interference, nuisance or disturbance by other
tenants or third persons, nor shall Tenant be
released from any of the obligations of this
Lease because of such interference, nuisance or
disturbance.
35. LANDLORD'S LIABILITY. 35. Any liability of Landlord hereunder shall be
enforceable only out of the interest of Landlord
in the Building and the Property and in no event
out of the separate assets of Landlord or any
shareholder or partner of Landlord.
19
36. RIGHT TO RELOCATE. 36. This Paragraph is intentionally deleted in
its entirety.
37. NO ESTATE. 37. This contract shall create the relationship
of Landlord and Tenant, and no estate shall pass
out of Landlord. Tenant has only a usufruct, not
subject to levy and sale and not assignable by
Tenant, except as provided for herein and in
compliance herewith.
38. LEASE EFFECTIVE DATE. 38. Submission of this instrument for examination
or signature by Tenant does not constitute a
reservation of or option for lease, and it is not
effective as a lease or otherwise until execution
and delivery by both Landlord and Tenant.
39. RULES AND REGULATIONS. 39. (a) Tenant shall faithfully observe and
comply with the rules and regulations printed on
or annexed to this Lease as Exhibit "A" which is
attached hereto and made a part hereof and all
reasonable modifications thereof and additions
thereto from time to time put into effect by
Landlord. Landlord shall supply Tenant with any
changes or amendments to said rules. Landlord
shall not be responsible for the nonperformance
by any other tenant or occupant of the Building
of any of said rules and regulations. Tenant
will be responsible for causing its employees,
customers, subtenants, licensees, invitees,
agents, concessionaires and contractors
to comply with all such rules and regulations.
(b) Tenant acknowledges and agrees that
Landlord may insist upon compliance with and
enforce the rules and regulations as well as any
laws, statutes, ordinances or governmental rules
or regulations as mentioned in Paragraph 5 above,
and may, pursuant to the Georgia Criminal
Trespass Statute (Official Code of Georgia
Annotated, Section 16-7-21), prohibit any person
including any of Tenant's employees, agents,
customers, licensees, guests, invitees,
concessionaires, or contractors from entering or
remaining upon all or any portion of the
Building, including the Premises, or any other
building or property within the Atlanta Galleria
complex, including the hotel, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, parking lots, parking
decks, performance stages, and all other
buildings, land or property, if Landlord
determines in its sole discretion that said
person has not complied with any law, ordinance,
rule or regulation or poses a threat to the
safety, welfare or health of any person or to the
maintenance or orderliness of the administration
of the Building. Tenant further agrees that it
shall not interfere with or object to Landlord's
enforcement of any such laws, ordinances, rules
and regulations including Official Code of
Georgia Annotated, Section 16-77-21 or any
similar statute. Notwithstanding any of the
foregoing language to the contrary, Landlord
shall give Tenant notice of any additional rules
and regulations with regard to any other
portions of property within the Atlanta Galleria
Complex and put Tenant on notice that such
rules and regulations are in addition to those
set forth on Exhibit "A".
40. SPECIAL STIPULATIONS. 40. Special Stipulations to this Lease are set
forth on Exhibit "E" attached hereto and made a
part hereof. In the event of any conflict between
any provision set forth in Exhibit "E" and any
provision contained elsewhere in this Lease, the
former in all events shall supersede, prevail and
control.
20
[THIS PAGE WAS INTENTIONALLY LEFT BLANK]
21
41. GUARANTY. 41. This Paragraph is intentionally deleted in
its entirety.
42. CONDITION. 42. This Paragraph is intentionally deleted in
its entirety.
43. BROKERAGE COMMISSIONS. 43. Tenant represents that Tenant has not engaged
or worked with any real estate brokers or agents
other than ▇▇▇▇▇ & ▇▇▇▇▇ Company (collectively,
"Broker") in connection with this Lease for the
Premises. Landlord represents to Tenant that
Landlord has not engaged or worked with any real
estate brokers or agents other than Broker.
Tenant and Landlord each indemnify and hold
harmless one another and each of their agents
from and against any and all claims for
commissions or other compensation, and any
liabilities, damages and costs relating thereto,
that may be asserted by any person or entity
other than Broker to the extent that, said party
has engaged such person or such claim results
from any action of said party.
44. EXCULPATION 44. This Lease is executed, not individually, but
solely on behalf of Galleria 600, LLC, by certain
employees of OTR, an Ohio general partnership,
the authorized nominee and agent for The State
Teachers Retirement Board of Ohio ("▇▇▇▇▇"). In
consideration for entering into this Lease,
Tenant hereby waives any rights to bring a cause
of action against the individuals executing this
Lease on behalf of Landlord (except for any cause
of action based upon lack of authority or fraud),
and all persons dealing with Landlord must look
solely to Landlord's assets for the enforcement
of any claim against Landlord, and the
obligations hereunder are not binding upon, nor
shall resort be had to the private property of
any of, the trustees, officers, directors,
employees or agents of ▇▇▇▇▇. Nothing contained
in this Paragraph 44 shall be deemed to limit the
provisons of Paragraph 35 above.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year
first above written.
LANDLORD: GALLERIA 600, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: OTR, an Ohio general partnership,
its manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Sr. Asset Management Officer
TENANT: THE ULTIMATE SOFTWARE GROUP,
INC., A DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
Attest: /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: SECRETARY
(CORPORATE SEAL)
(SEAL)
22
EXHIBIT "A"
RULES AND REGULATIONS
1. Sidewalks, halls, passages, exits, entrances, elevators, escalators and
stairways shall not be obstructed by Tenants or used by them for any
purpose other than for ingress and egress from their respective Premises.
The halls, passages, exits, entrances, elevators and stairways are not for
the use of the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose
presence, in the judgment of Landlord, shall be prejudicial to the safety,
character, reputation and interests of the Building and its Tenants,
provided that nothing herein contained shall be construed to prevent such
access to persons with whom any Tenant normally deals in the ordinary
course of such Tenant's business unless such persons are engaged in illegal
activities. No Tenant, and no employees or invitees of any Tenant, shall go
upon the roof of the Building, except as authorized by Landlord.
2. No sign, placard, picture, name, advertisement, notice or other such item
visible from the exterior of Premises shall be inscribed, painted,
illuminated, affixed, installed or otherwise displayed by any Tenant either
on its Premises or any part of the Building without the prior written
consent of Landlord, in Landlord's sole discretion, and Landlord shall
have the right to remove any such sign, placard, picture, name,
advertisement, notice or other such item without notice to and at the
expense of Tenant.
If Landlord shall have given such consent to any Tenant at any time,
whether before or after the execution of the Lease, such consent shall in
no way operate as a waiver or release of any of the provisions hereof or of
such Lease, and shall be deemed to relate only to the particular sign,
placard, picture, name, advertisement or notice so consented to by Landlord
and shall not be construed as dispensing with the necessity of obtaining
the specific written consent of Landlord with respect to any other such
sign, placard, picture, name, advertisement or notice.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed and inscribed at the expense of the Tenant by a person
approved by Landlord.
3. The bulletin board or directory of the Building will be provided
exclusively for the display of the name and location of Tenants only and
Landlord reserves the right to exclude any other names therefrom, including
the names of any subtenants of Tenant.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on any Premises
without the prior written consent of Landlord which consent shall not be
unreasonably withheld. In any event with the prior written consent of
Landlord, all such items shall be installed inboard of Landlord's standard
window covering and shall in no way be visible from the exterior of the
Building. No articles shall be placed or kept on the window ▇▇▇▇▇ so as to
be visible from the exterior of the Building. No articles shall be placed
against glass partitions or doors which might appear unsightly from outside
Tenant's Premises.
5. Landlord reserves the right to exclude from the Building between the hours
of 6 pm and 8 am on Monday through Friday and at all hours on Saturdays,
Sundays, and holidays all persons who are not Tenants or their accompanied
guests in the Building. Each Tenant shall be responsible for all persons
for whom it allows to enter the Building and shall be liable to Landlord
for all acts of such persons.
Landlord shall in no case be liable for damages for error with regard to
the admission to or exclusion from the Building of any person.
During the continuance of any invasion, mob, riot, public excitement or
other circumstances rendering such action advisable in Landlord's opinion,
Landlord reserves the right to prevent access to the Building by closing
and/or locking the doors, or otherwise, for the safety of Tenants and
protection of the Building and property in the Building.
6. No Tenant shall employ any person or persons for the purpose of cleaning
Premises unless otherwise agreed to by Landlord in writing. Except with the
written consent of Landlord, in landlord's sole discretion, no person or
persons other than those approved by Landlord shall be permitted to enter
the Building for the purpose of cleaning same. No Tenant shall cause any
unnecessary labor by reason of such Tenant's carelessness or indifference
in the preservation of good order and cleanliness of the Premises. Landlord
shall in no way be responsible to any tenant for any loss of property on
the Premises, however occurring, or for any damage done to the effect's of
any Tenant by the janitor or any other employee or any other person.
7. No Tenant shall obtain or maintain for use upon its Premises or the
Building coin-operated or other vending machines or accept barbering or
bootblacking or carwashing services in its Premises or in the Building, or
on the Property, except from persons authorized by Landlord.
8. Each Tenant shall see that all doors of its Premises are closed and
securely locked and must observe strict care and caution that all water
faucets, water apparatus, coffee makers and any other electrical appliances
or equipment are entirely shut off before the Tenant or its employees
leave such Premises, and that all utilities shall likewise be carefully
shut off so as to prevent waste or damage, and for any default or
carelessness the Tenant shall make good all injuries sustained by other
Tenants or occupants of the Building of Landlord. On multiple tenancy
floors, all Tenants shall keep the door or doors to the Building corridors
closed at all times except for ingress and egress.
9. As more specifically provided in the Tenant's Lease of the Premises, Tenant
shall not waste electricity, water or air-conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air-conditioning, and shall refrain from attempting
to adjust any controls.
10. No Tenant shall alter any lock or access device or install a new or
additional lock or access device or any bolt on any door of its Premises
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld.
11. No Tenant shall make or have made additional copies of any keys or access
devices provided by Landlord. Each Tenant, upon the termination of the
Tenancy, shall deliver to Landlord all the keys or access devices for the
Building, offices, rooms and toilet rooms which shall have been furnished
Tenant or which Tenant shall have had made. In the event of the loss of any
keys or access devices so furnished by Landlord, Tenant shall pay Landlord
therefor.
12. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever, including, but not limited
to, coffee grounds shall be thrown therein, and the expense of any
breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the Tenant, who, or whose employees or invitees, shall
have caused it.
13. No Tenant shall use or keep in its Premises or the Building any kerosene,
gasoline or flammable or combustible fluid or material other than limited
quantities necessary for the operation or maintenance of office equipment.
No tenant shall use any method of healing or air-conditioning other than
that supplied by Landlord. In the event flammable or combustible fluids or
materials are permitted by Landlord in the Premises, these materials must
be maintained and secured so as to comply with all laws, rules and
regulations governing such materials, including but not limited to, all
fire codes.
14. No Tenant shall use, keep or permit to be used or Kept in its Premises any
foul or noxious gas or substance or permit or suffer such Premises to be
occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors and/or vibrations
or interfere in any way with other Tenants or those having business
therein, nor shall any animals or birds be brought or kept in or about any
Premises of the Building.
15. Except for the use by Tenant of a microwave oven, no cooking shall be done
or permitted by any Tenant on its Premises without the consent of Landlord
which consent shall not be unreasonably withheld (except that use by the
Tenant of Underwriters Laboratory approved microwaves and/or equipment for
the preparation of coffee, tea, hot chocolate and similar beverages for
Tenants and their employees shall be permitted, provided that such
equipment and use is in accordance with applicable federal, state and city
laws, codes, ordinances, rules and regulations nor shall Premises be used
for lodging.
16. Except with the prior written consent of Landlord, in Landlord's sole
discretion, no Tenant shall sell, permit the sale, at retail, of
newspapers, magazines, periodicals, theater tickets or any other goods or
merchandise in or on any Premises, nor shall Tenant carry on, or permit or
allow any employee or other person to carry on, the business of
stenography, typewriting or any similar business in or from any Premises
for the service or accommodation of occupants of any other portion of the
Building, nor shall the Premises of any Tenant be used for the storage of
merchandise or for manufacturing of any kind, or the business of a public
▇▇▇▇▇▇ shop, beauty parlor, nor shall the Premises of any Tenant be used
for any improper, immoral or objectionable purpose, or any business
activity other than that specifically provided for in such Tenant's lease.
17. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
in their installation.
18. Landlord will direct electricians as to where and how telephone, telegraph
and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of
Landlord, in Landlord's sole discretion. The location of burglar alarms,
telephones, call boxes or other office equipment affixed to all Premises
shall be subject to the written approval of Landlord, which approval shall
not be unreasonably withheld.
19. No Tenant shall install any radio or television antenna, loudspeaker or any
other device on the exterior walls or the roof of the Building. Tenant
shall not interfere with radio or television broadcasting or reception from
or in the Building or elsewhere.
20. No Tenant shall lay linoleum, tile, carpet or any other floor covering so
that the same shall be affixed to the floor of its Premises in any manner
except as approved in writing by Landlord. The expense of repairing any
damage resulting from a violation of this rule or the removal of any floor
covering shall be borne by the Tenant by whom, or by whose contractors,
employees or invitees, the damage shall have been caused.
21. Teneant is hereby advised that use of any freight elevator must be arranged
with the manager of the Building during acceptable hours (to be determined
by such manager in its reasonable discretion), which shall be at no
additional cost to Tenant and may include the use of such elevators during
off business hours for the moving of furniture, freight, equipment,
materials, supplies, packages, merchandise or other property to be received
in the Building or carried up or down the elevatrors. However, when
Landlord provides a security guard for use of any freight elevator as
aforedescribed, then Tenant shall pay to Landlord the expense of such
security. Landlord shall have the right to prescribe the weight, size and
position of all safes, furniture, files, bookcases or other heavy equipment
brought into the Building. Safes or other heavy objects shall, if
considered necessary by Landlord, stand on wood strips of such thickness as
determined by Landlord to be necessary to properly distribute the weight
thereof. Landlord will not be responsible for loss of or damage to any such
safe, equipment or property from any cause, and all damage done to the
Building by moving or maintaining any such safe, equipment or other
property shall be repaired at the expense of Tenant.
Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration thai may be transmitted to the structure of the Building
or to any space therein to such a degree as to be objectionable to Landlord
or to any tenants in the Building shall be placed and maintained by Tenant,
at Tenant's expense, on
vibration eliminators or other devices sufficient to eliminate noise or
vibration. The persons employed to move such equipment in or out of the
Building must be acceptable to Landlord.
22. No Tenant shall place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. No Tenant shall ▇▇▇▇, or drive nails, screws or drill
into, the partitions, woodwork or plaster or in any way deface such
Premises or any part thereof.
23. There shall not be used in any space, or in the public areas of the
Building, either by Tenant or others, any hand trucks except those equipped
with rubber tires and side guards or such other material-handling equipment
as Landlord may approve. No other vehicles of any kind shall be brought by
any Tenant into or kept in or about the Premises.
24. Each Tenant shall store all its trash and garbage within the interior of
its Premises. No materials shall be placed in the trash boxes or
receptacles if such material is of such nature that it may not be disposed
of in the ordinary and customary manner of removing and disposing of trash
and garbage in this area without violation of any law or ordinance
governing such disposal. All trash, garbage and refuse disposal shall be
made only through entryways and elevators provided for such purposes and at
such times as Landlord may designate.
25. Canvassing, soliciting, distributing of handbills or any other written
material, and peddling in the Building are prohibited and each Tenant shall
cooperate to prevent the same. No Tenant shall make room-to-room
solicitation of business from other tenants in the Building.
26. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence
of alcohol or drugs or who is in violation of any of the rules and
regulations of the Building.
27. Without the prior written consent of Landlord, which consent shall not be
unreasonably withheld Tenant shall not use the name of the Building in
connection with or in promoting or advertising the business of Tenant
except as Tenant's address.
28. Tenant shall comply with all energy conservation, safety, fire protection
and evacuation procedures and regulations established by Landlord or any
governmental agency.
29. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
30. The requirements of Tenants will be attended to only upon application at
the office of the Building by an authorized individual. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties unless given special instructions from Landlord, and no employees
will admit any person (Tenant or otherwise) to any office without specific
instructions from Landlord.
31. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular Tenant or Tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other Tenant or Tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all Tenants of the Building.
32. 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 safety
and security, for care and cleanliness of the Building and for the
preservation of good order therein. After receipt of said rules by Tenant,
Tenant agrees to abide by all such Rules and Regulations hereinabove stated
and any additional rules and regulations which are adopted.
33. All wallpaper or vinyl fabric materials which Tenant may install on painted
walls shall be applied with a strippable adhesive. The use of nonstrippable
adhesives will cause damage to the walls when materials are removed, and
repairs made necessary thereby shall be made by Landlord at Tenant's
expense.
34. All work proposed by Tenant in the Premises must be pre-approved by
Landlord which approval shall not be unreasonably delayed. Tenant will
refer all contractors, contractors' representatives and installation
technicians, rendering any service to Tenant, to Landlord for Landlord's
supervision, approval, and control before performance of any contractual
service. This provision shall apply to all work performed in the Premises
and other portions of the Building, including installations of telephones,
telegraph equipment, electrical devices and attachments and installations
of any nature affecting floors, walls, woodwork, trim, windows, ceilings,
equipment or any other physical portion of the Building.
35. Tenant shall give prompt notice to Landlord of any accidents to or defects
in plumbing, electrical fixtures, or heating apparatus so that such
accidents or defects may be attended to properly.
36. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, customers,
invites and guests.
37. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any Lease of Premises in the
Building.
38. All appliances, fixtures, equipment and other devices located in the
Premises and to-be connected to a water source, including, without
limitation, dishwashers, ice making machines, coffee makers and
refrigerators and freezers, shall be connected to such water source using
only copper piping with either copper compression fittings, flanged
fittings, or soldered connections. No plastic tubing or other plastic
lines, plastic connectors or plastic valves shall be used in the connection
of any such items.
39. Smoking shall be prohibited in all areas of the Building. No Tenant shall
allow smoking within the Premises. Smoking shall be allowed only in those
areas outside of the Building as are designated from time to time by
Landlord as smoking areas.
EXHIBIT "B"
WORK LETTER AGREEMENT
1. MATERIALS FURNISHED BY LANDLORD AND LANDLORD'S WARRANTY
Landlord at its sole cost except as otherwise provided herein, shall build
out the Premises pursuant to the Plans and Specification agreed upon by Landlord
and Tenant and deliver the "turn key" build out of the Premises to Tenant
pursuant to the requirements under the Lease and this Work Letter Agreement,
which shall include, without limitation, the furnishing and installation within
the Premises substantially in accordance with Plans and Specifications, the
following: partitions, doors, lighting fixtures, acoustical ceiling, floor
covering, electrical switches and outlets, telephone outlets, air conditioning,
and other improvements required by Tenant which are normally performed by the
construction trades. Landlord warrants to Tenant that all of the build out of
the Premises pursuant to the Plans and Specifications shall be performed in
accordant with industry standards, free from defects, including, without
limitation, all labor, materials, equipment and workmanship.
2. IMPROVEMENT COSTS TO BE PAID BY LANDLORD
Landlord shall turnkey all of the improvements which Tenant desires to have
made to the Premises based upon the Schematic Plan #2, Revision #3 dated March
13, 2006 a copy of which is attached hereto and made a part hereof as Exhibit
"D". In addition, Landlord shall provide an allowance for any cabling (including
audio visual) within the Premises equal to Three and No/l00 Dollars ($3.00) per
rentable square foot contained in the Premises which is 14,309 rentable square
feet, Landlord shall pay the full amount of the aforedescribed cabling allowance
to Tenant within fourteen (14) days of Tenant's delivery of the invoice thereof
to Landlord. The total Tenant Allowance for cabling shall not exceed Forty Two
Thousand Nine Hundred Twenty Seven and No/100 Dollars ($42,927.00).
3. IMPROVEMENT COSTS TO BE PAID BY TENANT
The cost of any improvements not shown on the Plans and Specifications or
otherwise specified for payment by Tenant on the Plans and Specifications that
are in addition to those provided by Landlord in Paragraphs 1 and 2 above shall
be paid by Tenant, one half (1/2) upon commencement of the construction and one
half (1/2) upon completion of the construction. Should Tenant request any
modifications to work which has already been completed under this Work Letter
Agreement, Tenant shall pay the costs of all such modifications, one half (1/2)
upon commencement of the modifications and one half (1/2) upon competition of
the modifications.
4. APPROVAL OF PLANS AND COST
(a) Landlord and Tenant shall diligently pursue the preparation of all
Plans and Specifications for the improvements as described in this Work Letter
Agreement, the cost of which shall be borne by Landlord. All such Plans and
Specifications including finishes shall have the approval of both Landlord and
Tenant, which approval shall not be unreasonably withheld by either party; in
addition, all Plans and Specifications shall have the approval of all
governmental agencies and authorities, including but not limited to, the
state and county fire marshal. Plans and Specifications shall be approved by
Landlord and Tenant no later than April 24, 2006, in accordance with the
procedure set forth in the following Paragraph 4(b).
(b) As soon as practicable after execution of this Lease, Tenant shall
provide Landlord with instructions sufficient to enable Landlord to prepare
Plans and Specifications for the improvements Tenant desires to have provided.
Thereafter, if per the provisions of Paragraph 3 above, Tenant shall bear any of
the costs of the improvements, a cost estimate for the improvements to be paid
for by Tenant shall be prepared by Landlord and submitted to Tenant for
preliminary approval. When the Plans and Specifications are approved by Landlord
and Tenant, Landlord shall obtain a quotation, and shall submit the same to
Tenant for approval as the price to be paid by Tenant to Landlord for said
improvements which relate solely to the costs to be borne by Tenant pursuant to
Paragraph 2. Upon written approval of such price by Tenant, Landlord and Tenant
shall be deemed to have given final approval to the Plans and Specifications on
the basis of which the quotation was made and Landlord shall be authorized to
proceed with the improvements of the Premises in accordance with such Plans and
Specifications. If Tenant disapproves such price which is solely for Tenant's
work as described in Paragraph 2, or fails to approve or disapprove such price
within seven (7) days after submission thereof by Landlord, Landlord shall not
be obligated to proceed with any improvement of the Premises until such time as
Landlord and Tenant approve a price for Tenant's work.
(c) Tenant shall bear the cost of any changes in the work requested by
Tenant after final approval of Plans and Specifications under Paragraph 4(b)
above.
EXHIBIT "C"
TENANT LEASE ESTOPPEL CERTIFICATE
Landlord: Galleria 600, LLC. a Delaware limited liability company
Tenant: ________________________________
Premises: ______________________________
Area: __________________ Sq. Ft. Lease Date: _________________________
The undersigned Tenant under the above-referenced lease (the "Lease")
hereby ratifies the Lease and certifies to __________________ ("Landlord") as
owner of the real property of which the premises demised under the Lease (the
"Premises") is a part, as follows:
1. That the term of the Lease commenced on __________, 200_ and the Tenant
is in full and complete possession of the Premises demised under the Lease and
has commenced full occupancy and use of the Premises, such possession having
been delivered by Landlord and having been accepted by the Tenant.
2. That the Lease calls for monthly rent installments of $_________ to date
and that the Tenant is paying monthly installments of rent of $_________ which
commenced to accrue on the ___ day of __________, 200_.
3. That no advance rental or other payment has been made in connection with
the Lease, except rental for the current month. There is no "free rent" or other
concession under the remaining term of the Lease, and the rent has been paid to
and including _____________, 200_.
4. That a security deposit in the amount of $__________ is being held by
Landlord, which amount is not subject to any set off or reduction or to any
increase for interest or other credit due to Tenant.
5. That all obligations and conditions under said Lease to be performed to
date by Landlord or Tenant have been satisfied, free of defenses and set-offs
including all construction work in the Premises.
6. That the Lease is a valid lease and in full force and effect and
represents the entire agreement between the parties; that there is no existing
default on the part of Landlord or the Tenant in any of the terms and conditions
thereof and no event has occurred which, with the passing of time or giving of
notice or both, would constitute an event of default; and that said Lease has:
(Initial One)
[ ] not been amended, modified, supplemented, extended, renewed or
assigned.
[ ] been amended, modified, supplemented, extended, renewed or
assigned as follows by the following described agreements:
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
7. That the Lease provides for a primary term of ___________ months; the
term of the Lease expires on the day of ______, 200_; and that: (Initial One)
[ ] neither the Lease nor any of the documents listed in Paragraph 6
(if any), contain an option for any additional term or terms.
[ ] the Lease and/or the documents listed under Paragraph 6, above,
contain an option for ______________________________ additional
term(s) of _________ year(s) and _________ month(s) (each) at a
rent to be determined as follows:
___________________________________________________________
___________________________________________________________
___________________________________________________________
8. That Landlord has not rebated, reduced or waived any amounts due from
Tenant under the Lease, either orally or in writing, nor has Landlord provided
financing for, made loans or advances to, or invested in the business of Tenant.
9. That, to the best of Tenant's knowledge, there is no apparent or likely
contamination of the real property or the Premises by hazardous materials, and
Tenant does not use, nor has Tenant disposed of, hazardous materials in
violation of environmental laws on the real property or the Premises.
10. That there are no actions, voluntary or involuntary, pending against
the Tenant under the bankruptcy laws of the United States or any state thereof.
11. That this certification is made knowing that Landlord is relying upon the
representations herein made.
Tenant:
----------------------------------------
Dated: By:
------------------------------ ------------------------------------
Typed Name:
----------------------------
Title:
---------------------------------
EXHIBIT "D"
FLOOR PLAN OF PREMISES
AND
SCHEMATIC PLAN #2 AND REVISION #3 DATED MARCH 13, 2006
(FLOOR PLAN)
Added to and made part of Lease Agreement between
Galleria 600, LLC, a Delaware limited liability company. ("Landlord") and The
Ultimate Software Group, Inc., a Delaware corporation ("Tenant").
Suite: ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Feet: 14,309
Useable Square Feet: 12,309
EXHIBIT "E"
SPECIAL STIPULATIONS
Added to and made part of Lease Agreement between Galleria 600, LLC, a Delaware
limited liability company ("Landlord") and The Ultimate Software Group, Inc., a
Delaware corporation ("Tenant").
1. The Security Deposit in the amount of Twenty Six Thousand Eight Hundred
Twenty Nine and 38/100 Dollars ($26,829,38) and the First Month's Rent in the
amount of Twenty Six Thousand Eight Hundred Twenty Nine and 38/100 Dollars
($26,829,38) are due and payable upon Lease execution by Tenant. Check(s) should
be made payable to OTR Nominee of State Teachers Retirement System of Ohio.
2. Tenant shall not be responsible for the payment of rent for the first seven
(7) months of occupancy.
3. Provided Tenant is not in default and as long as Tenant is still in occupancy
of the Premises, Tenant shall have one(1) option to renew this Lease of the
entire Leased Premises for an additional five (5) year term pursuant to the same
terms and conditions as set forth in the Lease, with the exception only of the
annual rent as described below; upon Tenant's election thereof, in its sole
discretion, by at least one hundred eighty (180) days prior written notice to
Landlord of its intent to renew. The annual rental rate for the renewal term
shall be at Ninety-Five Percent (95%) of the then current Building market rental
rate but in not event shall the annual rent for the first year of any renewal
term allowed hereunder be greater than Six Percent (6%) of the annual rent under
this Lease for the last twelve (12) months of the term or renewal term, if
applicable. Any other terms of any renewal shall be at ninety-five Percent (95%)
of the Building market rate including, without limitation. Tenant Improvement
Allowances, escalation of annual rent and concessions (such as free rent) being
offered to existing Tenants (collectively, "Other Terms"). In determining the
annual rent and Other Terms based on Ninety Five Percent (95%) of the Building
market rate, Landlord shall calculate such percentage based upon other tenants
occupying 10,000 to 15,000 net rentable square feet of the Building and Landlord
shall provide to Tenant copies of the leases for such tenants or the pertinent
terms of such leases evidencing the such calculations.
4. Provided Tenant is not in default. Tenant shall have an Option on
approximately 2,310 rentable square feet of contiguous space (Option Space).
Such Option shall be available to Tenant for Tenant to lease at anytime during
the first fifteen (15) months of the lease term by giving Landlord written
notice of its desire to lease the Option Space. Landlord shall provide the
Option Space to Tenant under the same prorated terms and conditions as the
Original Premises. In the event Tenant does not elect to lease the adjacent
2,310 rentable square feet in the first fifteen (15) months, this space shall
revert to a Right of First Refusal.
In the event that Tenant does not exercise its option to lease the Option Space
as provided above and provided further that Tenant is not in default. Tenant
shall have a right of first refusal on approximately 2,310 rentable square feet
adjacent to the Option Space referenced above. Upon receipt of written notice
from Landlord that a third party has made a bonafide offer to lease the
aforementioned suite. Tenant shall respond to Landlord within seven (7) days
whether it intends to lease the space at the terms offered by Landlord. If
Tenant indicates that it will not lease the space offered, Landlord may proceed
to lease it to another party and Tenant shall have waived its right to lease
that space at that time; however, if such offer by a third party is not
consummated or the lease to the third party expired prior to the expiration of
the term of this Lease or any renewal thereof, the right of first refusal shall
remain in full force and effect. If Tenant indicates that it will lease the
space offered. Tenant and Landlord shall execute an amendment to this Lease for
the space within ten (10) days of notifying Landlord of its intention to lease
the space, and Tenant shall lease the Option Space upon the same terms and
conditions as contained in the bonafide offer except that the term for the
leasing of the Option Space shall terminate upon the same date as the Term of
this Lease and any renewal hereof elected by Tenant. Notwithstanding any of the
foregoing language to the contrary, in the event that Landlord notifies Tenant
of a bonafide offer during the last twelve (12) months of the Term or any
renewal term thereof but prior to six (6) months of the expiration of the Term
or any renewal thereof, then Tenant's right of renewal, as contained in
Paragraph 3 above shall be elected and agreed upon by Tenant and Landlord
together with Tenant's right of first refusal within fourteen (14) days of
Tenant's receipt of notice from Landlord of such bonafide offer, otherwise.
Tenants's right of first refusal under this Paragraph 4 shall be waived;
however, Tenant's option to renew the Lease shall remain in full force and
effect pursuant to the terms of Paragraph 3 above. Under all circumstances.
Tenant's right of first refusal shall expire upon Tenant's failure to timely
renew this Lease pursuant to the terms and conditions of Paragraph 2 above.
5. This Lease is being executed as a redline at the request of Landlord and no
provisions that are crossed out are a part of this Lease.
EXHIBIT "F"
LEASE GUARANTY
[Intentionally Deleted]
EXHIBIT "G"
INSURANCE
1. COMMERCIAL GENERAL LIABILITY POLICY (1986 OR LATER EDITION)
General Liability Limits:
$2,000,000 General Aggregate
$2,000,000 Products and Completed Operations
$1,000,000 Personal and Advertising Injury
$1,000,000 Each Occurrence
$ 50,000 Fire Damage Limit (any one fire)
$ 5,000 Medical Expense Limit (any one person)
Said policy shall have no deductible on Self Insured Retention without
prior written approval.
2. UMBRELLA / EXCESS LIABILITY
General Limits:
$1,000,000 Each Occurrence
$1,000,000 General Aggregate
3. WORKERS COMPENSATION
The policy must comply with all statutory requirements
Employer's Liability:
$100,000 Bodily injury by accident
$500,000 Policy limit by disease
$100,000 Bodily injury by disease each employee
4. TENANT PROPERTY
The policy must cover all direct physical loss equal to 100% replacement
cost of Tenant's personal property, all improvements and alterations, fixtures
and equipment provided by Landlord and/or Tenant (including but not limited to
the improvements described in Exhibit "B" of this Lease).
All of said policies shall: (i) name Landlord, Landlord's agent, and Childress
▇▇▇▇▇ Properties, Inc., together with their respective affiliates, as additional
insureds and insure Landlord's contingent liability under this Lease, (ii) be
issued by an insurance company licensed to do business in the State of Georgia
which is acceptable to Landlord and rated at least "A" by A.M. Bests Rating
Guide, and (iii) provide that said insurance shall not be canceled unless thirty
(30) days prior written notice shall have been given to Landlord and Landlord's
property manager. Said policies or certificates thereof shall be delivered to
Landlord and Landlord's property manager by Tenant upon commencement of the term
of the Lease and upon each renewal of said insurance.
