EXHIBIT 10.1
LEASE AGREEMENT
by and between
3280 PEACHTREE I LLC
("Landlord")
and
XPEDITE SYSTEMS, LLC,
D/B/A PREMIERE GLOBAL SERVICES
("Tenant")
dated
October 28, 2005
for
Suite Number 1000
containing approximately
23,529 square feet of Rentable Floor Area
Term: Eighty-four (84) months
Terminus at 0000 Xxxxxxxxx Xxxx
TABLE OF CONTENTS
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), is made and entered into this 28th
day of October, 2005, by and between Landlord and Tenant.
W I T N E S S E T H:
- - - - - - - - - -
1. CERTAIN DEFINITIONS. For purposes of this Lease, the following terms
shall have the meanings hereinafter ascribed thereto:
(a) Landlord: 3280 PEACHTREE I LLC
(b) Landlord's Address:
Prior to Rental Commencement Date:
Cousins Properties Incorporated
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Corporate Secretary
After Rental Commencement Date:
Cousins Properties Incorporated
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Corporate Secretary
(c) Tenant: XPEDITE SYSTEMS, LLC, D/B/A PREMIERE GLOBAL SERVICES
(d) Tenant's Address:
Prior to Rental Commencement Date:
0000 Xxxxxxxxx Xxxx, XX
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President,
Corporate Real Estate
-1-
After Rental Commencement Date:
0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President,
Corporate Real Estate
(e) Building Address:
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
(f) Suite Number: 1000
(g) Rentable Floor Area of Demised Premises:
23,529 square feet of Rentable Floor Area on the 10th
floor of the Building.
(h) Rentable Floor Area of Building:
582,049 square feet.
(i) Lease Term: Eighty-four (84) months.
(j) BASE RENTAL RATE: $21.00 per square foot of Rentable Floor Area
of Demised Premises per year, subject to adjustments as set forth in
Article 7 below.
(k) BOMA STANDARD: Means the American National Standard Method for
Measuring Floor Area in Office Buildings, ANSI/BOMA Z65.1-1996 published
by the Building Owners and Managers Association International. As a point
of clarification, the floor area within the elevator lobby on any floor of
the Building fully leased by Tenant shall be included in the calculation
of Usable Area on such floor, and the BOMA Standard shall be so construed.
(l) BUCKHEAD AREA: Is the office sub-market known as the "Buckhead"
sub-market, as shown in the most current published edition of "Xxxxx'x
Office Guide" or, if such periodical is no longer regularly published, in
such other reputable publication that surveys and categorizes the market
for commercial office buildings in the Atlanta, Georgia metropolitan area,
as such other publication is agreed upon by Landlord and Tenant, in their
respective reasonable judgment.
-2-
(m) BUSINESS DAY: Means each day from Monday through Friday,
exclusive of Holidays. Wherever the term "day" or "days" is used herein
(as distinguished from "Business Day" or "Business Days"), such term shall
mean and refer to calendar days.
(n) DELIVERY DATE: Means the date the Building is substantially
complete and a certificate of occupancy, temporary or otherwise, or its
equivalent, is issued for the Building and the Building Parking
Facilities. Landlord currently anticipates the Delivery Date to be July 1,
2007.
(o) DEMISED PREMISES DELIVERY DATE: Is defined in the Work Agreement
attached as EXHIBIT "D".
(p) RENTAL COMMENCEMENT DATE: Subject to Section 7(c) below, the
earlier of (x) August 1, 2007, or (y) the date upon which Tenant occupies
the Demised Premises for the purpose of conducting business therein, but
in no event prior to the Delivery Date. Landlord covenants that Tenant
shall have reasonable access to the Building freight elevators and other
such Building support services for the purpose of completing necessary
work in the Demised Premises, after the Demised Premises Delivery Date, so
that Tenant can complete Tenant's own work in the Demised Premises.
(q) RENT DEPOSIT: $60,783.25 (Article 5[c])
(r) CONSTRUCTION ALLOWANCE: $45.00 per square foot of Rentable Floor
Area in the Demised Premises. (see EXHIBIT "D")
(s) SECURITY DEPOSIT: None
(t) BROKER(S): XXXXXXX & WAKEFIELD OF GEORGIA, INC. ("CW"),
representing Tenant, and COUSINS PROPERTIES INCORPORATED ("CPI"),
representing Landlord.
(u) PROJECT ARCHITECT: HKS, Inc.
(v) AFFILIATE: Any person which directly or indirectly controls a
party hereto or which is directly or indirectly controlled by or under
common control with a party hereto, including any parent, subsidiary,
subsidiary of a party hereto parent, affiliate of a party hereto or any
limited liability company, partnership, trust, corporation or other entity
controlled by a party hereto, or any limited liability company,
partnership, trust, corporation or other entity into which a party hereto
may be converted or with which a party hereto may merge or into which a
party hereto or its assets may be consolidated (the term "control" for
these purposes shall mean the ability through agreement of the parties in
interest of the ownership of shares, membership interests or partnership
interests, as the case may be, to elect a majority of the directors of a
corporation or to make management decisions on behalf of, or to
independently select the managing partner or member of, a partnership or
limited liability company).
-3-
2. LEASE OF PREMISES. Landlord, in consideration of the covenants and
agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant does
hereby rent and lease from Landlord, certain premises (the "Demised Premises")
in the building (hereinafter referred to as "Building"), a rendering of which is
shown on EXHIBIT "I", attached hereto and by this reference incorporated herein,
located on that certain tract of land (the "Land") more particularly described
on EXHIBIT "A" attached hereto and by this reference made a part hereof, which
Land will generally be developed as shown on site plan attached hereto as
EXHIBIT "J", attached hereto and by this reference incorporated herein, which
Demised Premises are outlined in red or crosshatched on the floor plan attached
hereto as EXHIBIT "B" and by this reference made a part hereof, with no easement
for light, view or air included in the Demised Premises or being granted
hereunder. The "Project" is comprised of the Building, the Land, the Building's
parking facilities, any walkways, covered walkways, tunnels or other means of
access to the Building and the Building's parking facilities, all common areas,
including any lobbies or plazas, and any other improvements or landscaping on
the Land. Landlord reserves the right to adjust the common boundaries between
the Land and the real property adjacent to the Land from time to time, and upon
making any such adjustment, Landlord shall give written notice thereof to
Tenant, so long as such adjustment has no material impact on Tenant's use of the
Demised Premises or Building or any costs payable by Tenant under the Lease.
After any such adjustment, upon the request of either party, Landlord and Tenant
shall amend this Lease to effect an appropriate adjustment in the legal
description of the Land.
The exact size of the Demised Premises shall be determined by Tenant
and designated in Tenant's schematic design plans for the Demised Premises to be
delivered by Tenant to Landlord on or before July 1, 2006. The Rentable Floor
Area of the Demised Premises and the Usable Area within the Demised Premises
shall be measured by the Project Architect as soon as practicable after receipt
by Landlord of the "Plans and Specifications" (as defined in the Work Agreement
attached here as EXHIBIT "D"), and Landlord shall notify Tenant in writing of
Landlord's determination of such measurements and the calculation of the
Rentable Floor Area of the Demised Premises promptly following such measurement.
The measurements of Usable Area in the Demised Premises and in the Building
shall be determined in accordance with the BOMA Standard. All measurements of
Usable Area shall initially be made using the Computer Aided Drafting and Design
("CAD") system. Tenant shall have twenty (20) days following its receipt of such
notice (which notice shall not be valid unless accompanied by the information
from which said CAD system measurements were made, to enable Tenant to verify
Landlord's determination) from Landlord of the Rentable Floor Area of the
Demised Premises to have Tenant's Architect or Tenant's consultants perform the
measurements and calculations of the Usable Area and Rentable Floor Area of the
Building and the Usable Area and Rentable Floor Area of the Demised Premises
calculated in accordance with this Lease and to notify Landlord in writing
whether Tenant agrees or disagrees with Landlord's determinations of such
calculations. Upon request within such twenty (20) day period, Landlord shall
make available to Tenant the information from which such CAD system measurements
were made so as to enable Tenant to verify Landlord's determination. If Tenant
disagrees with Landlord's determination, Landlord and Tenant shall each cause
their respective architects or consultants to meet and to endeavor in
-4-
good faith, for an additional twenty (20) day period, to resolve their
disagreement. If the parties' architects or consultants are unable to resolve
such dispute within the twenty (20) day period, Landlord and Tenant shall,
within thirty (30) days thereafter, cause their respective architects and
consultants to appoint an independent architect who shall resolve such dispute
regarding the calculation of the Usable Area and Rentable Floor Area of the
Building and/or the Useable Area and Rentable Floor Area of the Demised Premises
by selecting, within thirty (30) days after such architect's appointment, the
calculation of Landlord or Tenant, whichever is determined by such independent
architect (using the BOMA Standard for determining Usable Area and the
applicable multipliers set forth in this Lease for converting Usable Area to
Rentable Floor Area) to be closest to the correct calculation based upon
measurements made by said selected independent architect using a CAD system. If
the parties' architects or consultants are unable to agree upon the appointment
of an independent architect within the time provided in the preceding sentence,
either Landlord or Tenant, upon notice to the other, may request the appointment
of such independent architect by the Chief Judge of the Xxxxxx Superior Court.
The decision of such independent architect shall be binding upon Landlord and
Tenant, subject to the procedure for confirmation based on actual physical
measurements as hereinafter provided in this Article 2. Landlord and Tenant
shall each have the right at any time prior to the date which is thirty (30)
days after the Delivery Date to confirm the measurements of the Demised Premises
and the Building based upon actual physical measurements. If Landlord and Tenant
determine that the total Rentable Floor Area of the Demised Premises, or of any
floor of the Building which may be included in the Demised Premises, calculated
on the basis of the actual physical measurements of the Demised Premises, shall
vary by more than one percent (1%) from the respective Rentable Floor Area
amounts or Usable Area amount previously established by means of the CAD system,
Landlord and Tenant shall make the appropriate adjustments in the applicable
calculations. If either party disagrees with the other party's determination of
such calculations based upon actual physical measurements, Landlord and Tenant
shall each cause their respective architects and consultants to meet and to
endeavor in good faith, for an additional thirty (30) day period, to resolve
their disagreement. If the parties' architects or consultants are unable to
resolve such dispute within the thirty (30) day period, Landlord and Tenant
shall each, within thirty (30) days thereafter, cause their respective
architects or consultants to appoint an independent architect who shall
undertake to make the physical measurements within thirty (30) days after its
appointment and to then select the calculation of Landlord or Tenant, whichever
is determined by such independent architect (using the BOMA Standard for
determining Usable Area and for converting Usable Area to Rentable Floor Area)
to be closest to the correct calculation based upon the actual physical
measurements made by said selected independent architect. If the parties'
architects or consultants are unable to agree upon the appointment of an
independent architect within the time provided in the preceding sentence, either
Landlord or Tenant, upon notice to the other, may request the appointment of
such independent architect by the Chief Judge of the Xxxxxx Superior Court. The
decision by such independent architect shall be binding upon Landlord and
Tenant; provided, however, adjustments in the applicable calculations shall be
made only if the Rentable Floor Area amounts for the Building, for the Demised
Premises or for any floor of the Building which may be included in the Demised
Premises, based upon such physical measurements, vary by more than one percent
(1%) from the respective Rentable Floor Area amounts or Usable Area amount
previously established by means of the CAD system, and if the final decision on
the correct
-5-
physical measurement indicates a Rentable Floor Area of more than two percent
(2%) in excess of the number stated in this Lease, then, notwithstanding what
the final number is, for the purpose of determining Rent due from Tenant under
this Lease, a figure which indicates a Rentable Floor Area of 2% higher shall be
used (the effect of which will be not to charge Tenant for the increase in
Rentable Floor Area above two percent (2%)). Landlord and Tenant agree to share
equally the costs of any independent architect selected to resolve a dispute or
disagreement under this Article 2. Within thirty (30) days following the
determination of the Rentable Floor Area of the Demised Premises, Landlord and
Tenant agree to execute an amendment to this Lease confirming the size, location
and configuration of the Demised Premises and attaching, in lieu of the
Preliminary Floor Plans, final floor plans of each of the floors in the Building
containing a portion of the Demised Premises (the "Final Floor Plans").
3. TERM. The term of this Lease ("Lease Term") shall commence on the
date first hereinabove set forth, and, unless extended or sooner terminated as
provided in this Lease, shall end on the expiration of the period designated in
Article 1(i) above, which period shall commence on the Rental Commencement Date,
unless the Rental Commencement Date shall be other than the first day of a
calendar month, in which event such period shall commence on the first day of
the calendar month following the month in which the Rental Commencement Date
occurs. Promptly after the Rental Commencement Date Landlord shall send to
Tenant a Supplemental Notice in the form of EXHIBIT "C" attached hereto and by
this reference made a part hereof, specifying the Rental Commencement Date, the
date of expiration of the Lease Term in accordance with Article 1(i) above and
certain other matters as therein set forth.
4. POSSESSION. The obligations of Landlord and Tenant with respect to
the initial leasehold improvements to the Demised Premises are set forth in
EXHIBIT "D" attached hereto and by this reference made a part hereof. Taking of
possession of the Demised Premises by Tenant shall be conclusive evidence that:
(a) Landlord's construction obligations with respect to the Demised Premises
have been completed in accordance with the Plans and Specifications and that the
Demised Premises, to the extent of Landlord's construction obligations with
respect thereto, are in good and satisfactory condition; and (b) the Project is
in good and satisfactory condition and is accepted by Tenant as suitable for the
purposes for which the Demised Premises are leased. The taking of possession by
Tenant of any portion of the Demised Premises shall not be deemed as a waiver of
(i) any Punch List Item or warranty work that Landlord is required to provide or
perform, or (ii) any above-ceiling or other latent defect, as of the date of
Substantial Completion not readily visible during a walk-through inspection of
the Demised Premises, and as to which Tenant shall have given Landlord written
notice within eleven (11) months after the date of Substantial Completion, all
of which items described in (i) and (ii) Landlord shall be obligated to promptly
repair to the extent the condition requiring repair shall not be caused by
Tenant, its agents, contractors or employees. Notwithstanding anything to the
contrary contained herein, the Delivery Date shall not be deemed to have
occurred unless and until Landlord shall have delivered the Demised Premises to
Tenant (a) with Landlord's work contemplated by EXHIBITS "D", "D-1" and "D-2"
being substantially complete (subject only to minor punchlist items that will
not impair Tenant's use and enjoyment of the Demised Premises and which are
capable of being completed on a reasonably prompt basis after the Delivery Date
-6-
(the "Punchlist Items"), (b) with all of such work being in compliance with all
applicable laws, codes, regulations and ordinances, and (c) with all systems
serving the Demised Premises being operational and in good condition. Landlord
covenants and agrees to use all reasonable efforts to complete the Punchlist
Items within thirty (30) days after the Delivery Date, and Landlord covenants
and agrees to complete the Punchlist items (other than the installation of long
lead time items that cannot be delivered within such period) within sixty (60)
days after the Delivery Date.
5. RENTAL PAYMENTS.
(a) Commencing on the Rental Commencement Date, and continuing
thereafter throughout the Lease Term, Tenant hereby agrees to pay all
Rent due and payable under this Lease. As used in this Lease, the term
"Rent" shall mean the Base Rental, Tenant's Forecast Additional Rental,
Tenant's Additional Rental, and any other amounts that Tenant assumes
or agrees to pay under the provisions of this Lease that are owed to
Landlord. Base Rental together with Tenant's Forecast Additional Rental
shall be due and payable in twelve (12) equal installments on the first
day of each calendar month, commencing on the Rental Commencement Date
and continuing thereafter throughout the Lease Term and any extensions
or renewals thereof, and Tenant hereby agrees to pay such Rent to
Landlord at Landlord's address as provided herein (or such other
address as may be designated by Landlord from time to time) monthly in
advance. Tenant shall pay all Rent and other sums of money as shall
become due from and payable by Tenant to Landlord under this Lease at
the times and in the manner provided in this Lease, without demand,
deduction, set-off or counterclaim, except as otherwise expressly
provided herein.
(b) If the Rental Commencement Date is other than the first
day of a calendar month or if this Lease terminates on other than the
last day of a calendar month, then the installments of Base Rental and
Tenant's Forecast Additional Rental for such month or months shall be
prorated on a daily basis and the installment or installments so
prorated shall be paid in advance. Also, if the Rental Commencement
Date occurs on other than the first day of a calendar year, or if this
Lease expires or is terminated on other than the last day of a calendar
year, Tenant's Additional Rental shall be prorated for such
commencement or termination year, as the case may be, by multiplying
such Tenant's Additional Rental by a fraction, the numerator of which
shall be the number of days of the Lease Term (from and after the
Rental Commencement Date) during the commencement or expiration or
termination year, as the case may be, and the denominator of which
shall be 365. The calculation described in Article 8 hereof shall be
made as soon as possible after the expiration or termination of this
Lease, and Landlord and Tenant hereby agree that the provisions
relating to said calculation shall survive the expiration or
termination of this Lease.
(c) As security for Tenant's obligations to take possession of
the Demised Premises in accordance with the terms of this Lease and to
comply with all of Tenant's
-7-
covenants, warranties and agreements hereunder, Tenant shall deposit
with Landlord within six (6) months of the date of this Lease, the sum
set forth in Article 1(o) above. Such amount shall be applied by
Landlord to the first monthly installment(s) of Base Rental as they
become due hereunder. If Tenant fails to comply with any of Tenant's
covenants, warranties or agreements hereunder, said sum shall be
retained by Landlord for application in reduction, but not in
satisfaction, of damages suffered by Landlord as a result of such
breach by Tenant. Landlord shall not be required to keep such deposit
separate from its general accounts.
(d) No payment by Tenant or acceptance by Landlord of an
amount less than the Rent herein stipulated or otherwise becoming due
shall be deemed a waiver of any other Rent due. No partial payment or
endorsement on any check or any letter accompanying such payment of
Rent shall be deemed an accord and satisfaction, and Landlord may
accept such payment without prejudice to Landlord's right to collect
the balance of any Rent due under the terms of this Lease or any late
charge assessed against Tenant hereunder. All payments received by
Landlord shall be applied by Landlord to the oldest balance due from
Tenant.
6. BASE RENTAL. Subject to adjustments in accordance with Article 7 below,
from and after the Rental Commencement Date Tenant shall pay to Landlord a base
annual rental (the "Base Rental") equal to the Base Rental Rate set forth in
Article 1(j) above multiplied by the Rentable Floor Area of the Demised Premises
set forth in Article 1(g) above (as the same may be modified pursuant to Section
2 above).
7. RENT ESCALATION. (a) As used in this Article 7, the term "Lease Year"
shall mean the twelve month period commencing on the Rental Commencement Date,
or, if the Rental Commencement Date is not on the first day of a calendar month,
commencing on the first day of the first calendar month following the Rental
Commencement Date, and each successive twelve month period thereafter during the
Lease Term.
(b) The Base Rental Rate for the First Lease Year shall be as
set forth in Article 1(j) herein. On the first day of each Subsequent
Year, the Base Rental Rate shall be increased to an amount as follows:
Second Lease Year $21.58 per square foot of Rentable Floor Area
Third Lease Year $22.17 per square foot of Rentable Floor Area
Fourth Lease Year $22.78 per square foot of Rentable Floor Area
Fifth Lease Year $23.41 per square foot of Rentable Floor Area
Sixth Lease Year $24.05 per square foot of Rentable Floor Area
Seventh Lease Year $24.72 per square foot of Rentable Floor Area
(c) For so long as no event of default (as defined in Article
19 herein) on the part of Tenant has occurred and is continuing, no
Base Rental shall be due from Tenant for the Demised Premises, for the
first eleven (11) months of the Lease Term.
-8-
8. ADDITIONAL RENTAL.
(a) Subject to the terms of this Article 8, from and after the Rental
Commencement Date, Tenant shall pay to Landlord "Tenant's Forecast Additional
Rental (as defined in subparagraph (b) below) and "Tenant's Additional Rental"
(as defined in subparagraph (c) below). Payment of Tenant's Forecast Additional
Rental shall be made as set forth in Article 5(a).
(b) For purposes of this Lease, "Tenant's Forecast Additional Rental"
shall mean Landlord's reasonable estimate of Tenant's Additional Rental for the
next occurring calendar year or portion thereof. If at any time Landlord
reasonably determines that Tenant's Additional Rental for the current calendar
year will vary from Landlord's estimate by more than five percent (5%), Landlord
shall have the right (which right may be exercised no more than one time per
year) to revise, by notice to Tenant, its estimate for such year, and subsequent
payments by Tenant for such year shall be based upon such revised estimate of
Tenant's Additional Rental. Failure to make a revision contemplated by the
immediately preceding sentence shall not prejudice Landlord's right to collect
the full amount of Tenant's Additional Rental. Prior to the Rental Commencement
Date and thereafter prior to the beginning of each calendar year during the
Lease Term, including any extensions thereof, Landlord shall present to Tenant a
statement of Tenant's Forecast Additional Rental for such calendar year;
provided, however, that if such statement is not given prior to the beginning of
any calendar year as aforesaid, Tenant shall continue to pay during the next
ensuing calendar year on the basis of the amount of Tenant's Forecast Additional
Rental payable during the calendar year just ended until the month after such
statement is delivered to Tenant.
(c) For purposes of this Lease, "Tenant's Additional Rental" shall mean
for each calendar year (or portion thereof) the Operating Expense Amount
(defined below) multiplied by the number of square feet of Rentable Floor Area
of Demised Premises. As used herein, "Operating Expense Amount" shall mean an
amount equal to (x) plus (y), where:
(x) equals the amount of Operating Expenses (as defined below)
for such calendar year divided by the greater of (i) 95% of the number
of square feet of Rentable Floor Area of the Building, or (ii) the
total number of square feet of Rentable Floor Area occupied in the
Building for such calendar year on an average annualized basis;
provided, however, if the Operating Expenses actually incurred by
Landlord are lower than would be incurred if at least 95% of the
Building were occupied or if Landlord shall not furnish any particular
item(s) of work or services (the cost of which would otherwise be
included within Operating Expenses) to portions of the Building because
(A) such portions are not occupied, (B) such item of work or services
is not required or desired by the tenant of such portion, (C) such
tenant is itself obtaining such item of work or services, or (D) of any
other reason, then appropriate adjustments shall be made to determine
Operating Expenses for such calendar year as though the Building
-9-
were actually occupied to the extent of the greater of (i) or (ii) above and
as though Landlord had furnished such item of work or services to the
greater of (i) or (ii) above; and
(y) equals a management fee contribution equal to three percent
(3%) of Tenant's Base Rental (on a per square foot basis) plus three
percent (3%) of the per square foot amount described in (x).
(d) Within one hundred fifty (150) days after the end of the calendar
year in which the Rental Commencement Date occurs and of each calendar year
thereafter during the Lease Term, or as soon thereafter as practicable, Landlord
shall provide Tenant a statement showing the Operating Expenses for said
calendar year, as prepared by a certified public accounting firm designated by
Landlord, and a statement prepared by Landlord comparing Tenant's Forecast
Additional Rental with Tenant's Additional Rental. In the event Tenant's
Forecast Additional Rental exceeds Tenant's Additional Rental for said calendar
year, Landlord shall credit such amount against Rent next due hereunder or, if
the Lease Term has expired or is about to expire, refund such excess to Tenant
if Tenant is not in default under this Lease (in the instance of a default such
excess shall be held as additional security for Tenant's performance, may be
applied by Landlord to cure any such default, and shall not be refunded until
any such default is cured). In the event that the Tenant's Additional Rental
exceeds Tenant's Forecast Additional Rental for said calendar year, Tenant shall
pay Landlord, within thirty (30) days of receipt of the statement, an amount
equal to such difference. The provisions of this Lease concerning the payment of
Tenant's Additional Rental shall survive the expiration or earlier termination
of this Lease.
(e) For so long as Tenant is not in default under this Lease,
Landlord's books and records pertaining to the calculation of Operating Expenses
for any calendar year within the Lease Term may be audited by an authorized
representative of Tenant at Tenant's expense, at any time within twelve (12)
months after the end of each such calendar year; provided that Tenant shall give
Landlord not less than thirty (30) days' prior written notice of any such audit.
For purposes hereof, an authorized representative of Tenant shall mean a bona
fide employee of Tenant, any reputable certified public accountant reasonably
approved in writing by Landlord. In no event shall an authorized representative
of Tenant include the owner of any office building in the metropolitan Atlanta,
Georgia area or any affiliate of such owner. Prior to the commencement of such
audit, Tenant shall cause its authorized representative to agree in writing for
the benefit of Landlord that such representative will keep the results of the
audit confidential and that such representative will not disclose or divulge the
results of such audit except to Tenant and Landlord and except in connection
with any dispute between Landlord and Tenant relating to Operating Expenses.
Such audit shall be conducted during reasonable business hours at Landlord's
office where Landlord's books and records are maintained (which shall be in the
xxxxxxxxxxxx xxxx xx Xxxxxxx, Xxxxxxx). Tenant shall cause a written audit
report to be prepared by its authorized representative following any such audit
and shall provide Landlord with a copy of such report promptly after receipt
thereof
-10-
by Tenant. If Landlord's calculation of Tenant's Additional Rental for the
audited calendar year was incorrect, then Tenant shall be entitled to a prompt
refund of any overpayment or Tenant shall promptly pay to Landlord the amount of
any underpayment, as the case may be.
Landlord shall not have the right to invoice Tenant for, and Tenant
shall not be obligated to pay, any component of Operating Expenses that was
incurred more than a year prior to the period covered by any final statement of
such Operating Expenses (referenced in Article 8(d) herein) delivered to Tenant,
except that such limitation shall not apply to bills or statements or
adjustments to previously provided bills or statements from or issued by
governmental or quasi-governmental entities (such as taxing authorities or any
service provided through or under a municipality or municipal authority) for
amounts lawfully due.
9. OPERATING EXPENSES.
(a) For the purposes of this Lease, "Operating Expenses" shall
mean all expenses, costs and disbursements (but not specific costs
billed to specific tenants of the Building) of every kind and nature,
computed on the accrual basis, relating to or incurred or paid in
connection with the ownership, management, operation, repair,
landscaping, and maintenance of the Project, incurred in keeping and
maintaining such as a first-class Building in the Buckhead Area,
including but not limited to, the following:
(1) wages, salaries and other costs of all on-site and
off-site employees (at or below the level of regional property
manager, or the equivalent position, which shall have salary and
costs allocated among all buildings and projects for which such
person has oversite responsibilities) engaged either full or
part-time in the operation, management, maintenance or access
control of the Project, including taxes, insurance and benefits
relating to such employees, allocated based upon the time such
employees are engaged directly in providing such services;
(2) the cost of all supplies, tools, equipment and
materials used in the operation, management, maintenance and
access control of the Project;
(3) the cost of all utilities for the Project, including
but not limited to the cost of electricity, gas, water, sewer
services, communication services, and power for heating,
lighting, air conditioning and ventilating;
(4) the cost of all maintenance and service agreements for
the Project and the equipment therein, including but not limited
to security service, garage operators, window cleaning, elevator
maintenance, HVAC maintenance, janitorial service, waste disposal
and recycling service, telecommunications services, interior
and/or exterior landscaping maintenance and customary interior
and/or exterior landscaping replacement;
-11-
(5) the cost of repairs and general maintenance of the
Project;
(6) amortization (together with reasonable financing
charges, whether or not actually incurred) of the reasonable cost
of acquisition and/or installation after Substantial Completion
of the Building and Building Parking Facilities of capital
investment items and/or capital improvements made by Landlord
(including security and energy management equipment), amortized
over their respective useful lives, which are installed for the
purpose of reducing Operating Expenses (but only if Landlord was
reasonable in determining that such capital investment item would
reduce Operating Expenses to an amount projected to be greater
than the expense which would be passed through to Tenant
resulting from such capital investment item), promoting safety or
complying with governmental requirements not in effect as of the
date of this Lease; provided, however, that the costs under this
Article for promoting safety or security may be included in
Operating Expenses only after the fifth (5th) anniversary of the
Rental Commencement Date, and that only twenty-five cents
(25(cent)) per square foot of Rentable Floor Area, per annum
(such limit to be increased every calendar year after 2007 by
three percent (3%)]), may be included in Operating Expenses for
Tenant as a result of capital costs incurred under this Article
for promoting safety or security;
(7) the reasonable cost of casualty, rental loss, liability
and other insurance applicable to the Project and Landlord's
personal property used in connection therewith;
(8) the reasonable cost of trash and garbage removal,
reasonably necessary air quality audits, vermin extermination,
and snow, ice and debris removal;
(9) the reasonable cost of legal and accounting services
incurred by Landlord in connection with the management,
maintenance, operation and repair of the Project, excluding the
owner's or Landlord's general accounting, such as partnership
statements and tax returns, and excluding services described in
Article 9(b)(14) below;
(10) all taxes, assessments and governmental charges,
whether or not directly paid by Landlord, whether federal, state,
county or municipal and whether they be by taxing districts or
authorities presently taxing the Project or by others
subsequently created or otherwise, and any other taxes and
assessments attributable to the Project or its operation (and the
reasonable costs of contesting any of the same, but only if
Landlord has a reasonable belief that a contest of such taxes
will result in a reduction thereof), including community
improvement district taxes and business license taxes and fees,
excluding, however, taxes and assessments imposed on the personal
property of the tenants of the Project,
-12-
federal and state taxes on income, death taxes, franchise taxes,
inheritance taxes, gift taxes, transfer taxes, excise taxes, net
income taxes, profit taxes, capital levies, late payment charges
and penalties (except if incurred in connection with and as a
required part or condition of a protest or contest of such
taxes), special assessments levied against property other than
real estate, and any taxes (other than business license taxes and
fees) imposed or measured on or by the income of Landlord from
the operation of the Project; and it is agreed that Tenant will
be responsible for ad valorem taxes on its personal property and
on the value of the leasehold improvements in the Demised
Premises to the extent that the same exceed Building Standard
allowances, if said taxes are based upon an assessment which
includes the cost of such leasehold improvements in excess of
Building Standard allowances. If any special assessments are
imposed, Landlord shall pay such special assessments in the
maximum number of installments and over the maximum time period
allowed, and only the specific installments falling due during
the Lease Term may be included in Operating Expenses;
(11) the reasonable cost of operating the management office
for the Project, including in each case the cost of office
supplies, bulletins or newsletters distributed to tenants,
postage, telephone expenses, maintenance and repair of office
equipment, non-capital investment equipment, amortization
(together with reasonable financing charges) of the cost of
capital investment equipment, and rent;
(12) if a fitness center (not to exceed 8,000 square feet
of Rentable Floor Area), conference center (not to exceed 4,000
square feet of Rentable Floor Area), or other amenity available
for use by Tenant and all similarly situated tenants of the
Project is operating within the Building, the pro rata share
applicable to the Building (allocated on a per square foot basis
among the buildings whose tenants have the right to utilize the
amenity in question) of the reasonable, out-of-pocket, net costs
(after applying any revenues or income from such facility) of
operating, managing, maintaining and repairing such amenity and
the equipment and furnishings therein, including, without
limitation, the cost of utilities, janitorial services, supplies,
insurance, personal property taxes, and amortization (together
with reasonable financing charges, not to exceed the Prime Rate,
plus two percent (2%) per annum) of the cost of replacing worn
out or obsolete equipment, furniture, or other applicable items,
but excluding costs of upfitting the amenity space and the costs
of purchasing the equipment and furniture initially or thereafter
installed in the amenity in question;
(13) the pro rata share applicable to the Land of the
shared costs incurred by Landlord as "Owner" of the Project under
and pursuant to that certain Amended, Modified and Restated
Declaration of Covenants, Conditions and Restrictions: Easements,
Restrictions, Reservations and Grant of Development Rights in
Limited Warranty Deed; Off-Site Development Agreement; and
Modification of Easements, Covenants, Conditions, Restrictions
and Other
-13-
Agreements, dated as of August 13, 1999, recorded in Deed Book
28389, page 285, Xxxxxx County, Georgia records, as may have been
or may be further modified, amended or supplemented from time to
time (the "Master Declaration"). The costs to be shared are
defined in the Master Declaration, and the pro rata share of the
foregoing costs, which are applicable to the Project, shall be
determined in accordance with the Master Declaration; and
(14) amortization (together with reasonable financing
charges, whether or not actually incurred) of the reasonable cost
of acquisition and/or installation of capital investment items,
amortized over their respective useful lives, which are installed
for the purpose of maintaining the first-class nature of the
Project (taking into account the age of the Project), including
capital investment items which are replacements of items which
are obsolete or cannot be repaired in an economically feasible
manner, but not including upgrades such as replacing the exterior
surface of the Building or reconfiguring the Building or the
lobby or substantially upgrading the finishes therein. Landlord
and Tenant agree that the costs under this Article 8.1.14 may be
included in Operating Expenses only after the fifth (5th)
anniversary of the Rent Commencement Date. Landlord and Tenant
agree that the costs under this Article 8.1.14 may be included in
Operating Expenses only after the fifth (5th) anniversary of the
Rental Commencement Date and that only twenty-five cents
(25(cent)) per square foot of Rentable Floor Area, per annum
(such limit to be increased every calendar year after 2007 by
three percent (3%)]), may be included in Operating Expenses as a
result of costs incurred under this Article 8.1.14.
(b) For purposes of this Lease, and notwithstanding anything in
any other provision of this Lease to the contrary, "Operating Expenses"
shall not include the following:
(1) the cost of any special work or service performed for
any tenant (including Tenant) at such tenant's cost;
(2) the cost of installing, operating and maintaining any
specialty service, such as an observatory, broadcasting facility,
luncheon club, restaurant, cafeteria, retail store, sundry shop,
newsstand, or concession, but only to the extent such costs
exceed those which would normally be expected to be incurred had
such space been general office space;
(3) the cost of correcting defects in construction;
(4) compensation paid to officers and executives of
Landlord (but it is understood that property management employees
may carry a title such as vice president and the salaries and
related benefits of these officers/employees of Landlord would be
allowable Operating Expenses under Article 9[a][1] above);
-14-
(5) the cost of any items for which Landlord is reimbursed
by insurance, condemnation or otherwise, except for costs
reimbursed pursuant to provisions similar to Articles 8 and 9
hereof;
(6) the cost of any additions, changes, replacements and
other items which are made in order to prepare for a new tenant's
occupancy;
(7) the cost of repairs incurred by reason of fire or other
casualty reimbursed by insurance proceeds under policies
maintained by Landlord;
(8) insurance premiums to the extent Landlord may be
directly reimbursed therefor, except for premiums reimbursed
pursuant to provisions similar to Articles 8 and 9 hereof;
(9) interest on debt or amortization payments on any
mortgage or deed to secure debt (except to the extent
specifically permitted by Article 9[a]) and rental under any
ground lease or other underlying lease;
(10) any real estate brokerage commissions or other costs
incurred in procuring tenants or any fee in lieu of such
commission;
(11) any advertising expenses incurred in connection with
the marketing of any rentable space;
(12) rental payments for base building equipment such as
HVAC equipment and elevators;
(13) any expenses for repairs or maintenance which are
covered by warranties and service contracts, to the extent such
maintenance and repairs are made at no cost to Landlord;
(14) legal expenses arising out of the construction of the
improvements on the Land or the enforcement of the provisions of
any lease affecting the Land or Building, including without
limitation this Lease;
(15) management fees (Tenant's obligation for a management
fee contribution is set forth in Article 8[c][y] above);
(16) the cost of any capital investment items, except for
the amortization of such costs as permitted by Articles 8.1.6,
8.1.11 and 8.1.12 hereof;
-15-
(17) any costs paid to any person or entity affiliated with
Landlord to the extent the costs paid for such services exceed
the fair market value for such services;
(18) the cost of overtime paid by Landlord to cure its
defaults or any amounts paid as a fine, penalty or interest as a
result of Landlord's late payments;
(19) costs of any cleanup, containment, abatement, removal
or remediation of "Hazardous Substances" (as herein defined)
(except for Hazardous Substances as are commonly and legally used
or stored as a consequence of using the Project as a
predominantly office project, and only if the quantities thereof
do not necessitate a "response action", as that term is defined
in CERCLA, or similar reporting requirement under applicable
Georgia law), to the extent such were either (i) on the Project
on the date of this Lease; (ii) introduced onto the Project by
Landlord, or as a result of Landlord's gross negligence; or (iii)
introduced onto the Project by a third-party identified by
Landlord;
(20) the cost of any improvements, alterations or
extraordinary repairs which are required to comply with laws in
effect as of the date of this Lease which require compliance at
any time during the Lease Term;
(21) any charitable or political contributions;
(22) any costs or expenses (including fines, penalties and
interest) incurred due to the violation of any Legal Requirements
to the extent such costs or expenses exceed those which would
have been incurred and included in Operating Expenses in the
absence of such violation;
(23) any costs or expenses (including fines, penalties and
interest) incurred due to the breach or default by Landlord of
its obligations under any lease or other agreement pertaining to
the Project to the extent such costs or expenses exceed those
that would have been incurred and included in Operating Expenses
in the absence of such breach or default;
(24) architectural or engineering fees and expenses, except
such fees and expenses incurred in connection with the
management, operation, repair and maintenance of the Project as
provided in Article 8.1 above;
(25) costs of decorating, redecorating, or special cleaning
or other services not provided on a regular basis to tenants of
the Building;
(26) any charge for depreciation of the Building or
equipment and any interest or other financing charge, to the
extent not specifically included under a provision in Article
9(a);
-16-
(27) all costs including leasing commissions relating to
activities for the solicitation and execution of leases including
renewals of space in the Building;
(28) the cost of tools and equipment used initially in the
construction, operation, repair and maintenance of the Building;
(29) the cost of any work or service performed for or
facilities furnished to any tenant of the Building to a
materially greater extent or in a manner materially more
favorable to such tenant than that performed for or furnished to
tenant;
(30) cost of correcting any defects in original
construction;
(31) cost incurred in connection with the sale, financing,
refinancing, mortgaging, or other change of ownership in the
Building;
(32) costs arising from the gross negligence or willful
misconduct of Landlord or Landlord's agents, employees,
licensees, agents, vendors, or contractors;
(33) cost for the acquisition of sculptures, paintings and
other fine art;
(34) any compensation paid to clerks, attendants or other
persons in commercial concessions operated by Landlord;
(35) rental payment for any Base Building equipment to the
extent such expenses would be capital expenses if the equipment
in question were purchased rather than leased, except to the
extent such is leased on a temporary or emergency basis;
(36) legal expenses, accounting expenses or other
professional fees arising out of any matter whatsoever other than
directly in connection with the Operating Expenses or Taxes;
(37) costs of acquisition of the signs for the Project
which are in place as of the Rental Commencement Date,
identifying the owner of the Building or other tenants;
(38) Landlord's general corporate overhead and general and
administrative expenses, except to the extent such are permitted
under Article 9(a) herein;
(39) cost of any Tenant appreciation events hosted by
Landlord in excess of three (3) such events per calendar year;
-17-
(40) any rent payable with respect to the Project's
management office which is computed at rental rates in excess of
fair market rents or payable with respect to space in excess of a
reasonably sized management office; not to exceed two thousand
(2,000) square feet of Rentable Floor Area is size;
(41) utility costs and costs of trash removal services
provided to tenants of the "Retail Component" (as herein
defined), and the costs incurred in performing any special work
or service for retail tenants or other individual tenants, which
work and services are materially in excess of work and services
required to be provided to Tenant under the Lease; and
(42) With respect to the Building Parking Facilities, no
costs incurred as a result of operating such facility at times
after typical office parking decks are operated, or which arise
directly as a result of the use of the Building Parking Facility
by the Retail Component shall be included as a part of Operating
Expenses.
(c) The Project includes, in addition to the Building, certain
retail spaces in the garage facilities or on the street adjacent to the
Building (collectively, the "Retail Components"). Operating Expenses
for the Retail Components shall be segregated on a commercially
reasonable basis and excluded from the Operating Expenses calculated
under this Article 9, to the extent that Operating Expenses are
incurred for the sole benefit of, or directly for, the Retail
Component. To the extent Operating Expenses are not so segregated and
are incurred for the benefit of, or directly for, both the Building and
the Retail Component(s) of the Project, such costs shall be allocated
between the Building and the respective Retail Component(s) on a per
square foot basis. For example, and by way of illustration but not
limitation, the costs of janitorial services for the Retail Component,
dumpsters for the Retail Component, and utilities for the Retail
Component shall be allocated solely to the Retail Component, and not to
the Building, and the costs of janitorial services for the Building
shall be allocated to the Building, and not the Retail Component, but
the cost of care and maintenance of Project roads and landscaping shall
be allocated between the Building and the Retail Component, based on
the square footage of each. Landlord shall also make comparable
adjustment to Operating Expenses for services provided to the retail
components of and within the Building lobby, to the extent services
provided to office tenants and such retail tenants are different.
10. TENANT TAXES; RENT TAXES. Tenant shall pay promptly when due all
taxes directly or indirectly imposed or assessed upon Tenant's gross sales,
business operations, machinery, equipment, trade fixtures and other personal
property or assets, whether such taxes are assessed against Tenant, Landlord or
the Building. In the event that such taxes are imposed or assessed against
Landlord or the Building, Landlord shall furnish Tenant with all applicable tax
bills, public charges and other assessments or impositions and Tenant shall
forthwith pay the same either directly to the taxing authority or, at Landlord's
option, to Landlord. In addition, in the event there is imposed at any time a
tax upon and/or measured by the rental payable by
-18-
Tenant under this Lease, whether by way of a sales or use tax or otherwise,
Tenant shall be responsible for the payment of such tax and shall pay the same
on or prior to the due date thereof; provided, however, that the foregoing shall
not include any inheritance, estate, succession, transfer, gift or income tax
imposed on or payable by Landlord.
11. PAYMENTS. All payments of Rent and other payments to be made to
Landlord shall be made on a timely basis and shall be payable to Landlord or as
Landlord may otherwise designate. All such payments shall be mailed or delivered
to Landlord's Address designated in Article 1(b) above or at such other place as
Landlord may designate from time to time in writing. If mailed, all payments
shall be mailed in sufficient time and with adequate postage thereon to be
received in Landlord's account by no later than the due date for such payment.
Tenant agrees to pay to Landlord Fifty Dollars ($50.00) for each check presented
to Landlord in payment of any obligation of Tenant which is not paid by the bank
on which it is drawn, together with interest from and after the due date for
such payment at the Prime Based Rate on the amount due. "Prime Based Rate" means
(a) the "prime rate" as reported in the Wall Street Journal (or if the Wall
Street Journal ceases to publish the prime rate or ceases publication, the
"prime rate" shall be the prime rate then offered by Bank of America, N.A. in
Atlanta, Georgia), plus (b) four (4) percentage points.
12. LATE CHARGES. Any Rent or other amounts payable to Landlord under
this Lease, if not paid by the fifth day of the month for which such Rent is
due, or by the due date specified in any invoices from Landlord for any other
amounts payable hereunder, shall incur a late payment service charge of Fifty
Dollars ($50.00) for Landlord's administrative expense in processing such
delinquent payment and in addition thereto shall bear interest at the Prime
Based Rate from and after the due date for such payment; provided, however, that
no late payment service charge shall be due for the first payment in any
calendar year not received from Tenant when due, unless such amount is not paid
by Tenant within ten (10) days after notice to Tenant that such payment was not
made when due. In no event shall the rate of interest payable on any late
payment exceed the legal limits for such interest enforceable under applicable
law.
13. USE RULES. The Demised Premises shall be used for executive,
general administrative and office space purposes and no other purposes and in
accordance with all applicable laws, ordinances, rules and regulations of
governmental authorities and the Rules and Regulations attached hereto as
EXHIBIT "F" and made a part hereof. The occupancy rate of the Demised Premises
shall in no event be more than one (1) person per 175 square feet of Rentable
Floor Area within the Demised Premises, (with occupancy including employees and
contractors housed or stationed on a regular basis, but not invitees). Tenant
covenants and agrees to abide by the Rules and Regulations in all respects as
now set forth and attached hereto or as hereafter promulgated by Landlord.
Landlord shall have the right at all times during the Lease Term to publish and
promulgate and thereafter enforce such rules and regulations or changes in the
existing Rules and Regulations as it may reasonably deem necessary in its sole
discretion to protect the tenantability, safety, operation, and welfare of the
Demised Premises and the Project. Notwithstanding the foregoing, Landlord shall
not modify the Rules and Regulations in a way that materially increases Tenant's
obligations hereunder or materially decreases Tenant's rights hereunder.
Landlord shall enforce the Rules and Regulations in a non-discriminatory manner
against similarly situated tenants.
-19-
14. ALTERATIONS. Except for any initial improvement of the Demised
Premises pursuant to EXHIBIT "D", which shall be governed by the provisions of
said EXHIBIT "D", and except for Permitted Changes, Tenant shall not make,
suffer or permit to be made any alterations, additions or improvements to or of
the Demised Premises or any part thereof, or attach any fixtures or equipment
thereto, without first obtaining Landlord's written consent, which consent shall
not be unreasonably withheld, conditioned or delayed. Without Landlord's prior
consent, Tenant shall be entitled to make nonstructural alterations and
additions which (i) do not adversely affect the plumbing, heating, air
conditioning, ventilation, electrical, mechanical and life safety systems of the
Demised Premises and the Building (ii) do not materially reduce the overall
quality of the leasehold improvements in the Demised Premises below the average
level of quality typically found in first-class office buildings in the Buckhead
area of Atlanta, Georgia (iii) are not visible from the exterior of the Building
(due to unusual lighting of such alterations or additions in close proximity to
the Building's exterior windows), and (iv) do not involve a Non-Standard
Alteration ("Permitted Changes"). Other than the Permitted Changes, Tenant shall
make no alterations in, or additions to, the Demised Premises without first
obtaining, in writing, Landlord's consent for such alterations or additions,
which consent shall not be unreasonably withheld or conditioned. Any such
alterations, additions or improvements to the Demised Premises consented to by
Landlord, except for Permitted Changes shall be made by Landlord or under
Landlord's supervision for Tenant's account and Tenant shall reimburse Landlord
for all costs thereof (including a reasonable charge for Landlord's overhead),
as Rent, within twenty (20) days after receipt of a statement. All such
alterations, additions and improvements shall become Landlord's property at the
expiration or earlier termination of the Lease Term and shall remain on the
Demised Premises without compensation to Tenant unless Landlord elects by notice
to Tenant, to be given, if at all, at the time Landlord consents to such
alterations, additions and improvements, to have Tenant remove such alterations,
additions and improvements, in which event, notwithstanding any contrary
provisions respecting such alterations, additions and improvements contained in
Article 32 hereof, Tenant shall promptly restore, at its sole cost and expense,
the Demised Premises to its condition prior to the installation of such
alterations, additions and improvements, normal wear and tear excepted.
15. REPAIRS.
(a) Landlord shall maintain in good order and repair, subject to
normal wear and tear and subject to casualty and condemnation, the
Project, Building (excluding the Demised Premises and other portions of
the Building leased to other tenants), the Building parking facilities,
the public areas and the landscaped areas. Notwithstanding the
foregoing obligation, the cost of any repairs or maintenance to the
foregoing necessitated by the intentional acts or negligence of Tenant
or its directors, officers, partners, members, shareholders,
representatives, agents, contractors, employees, servants, invitees,
patrons, guests, visitors, licensees, subtenants, assignees, and any
other party for whom Tenant is or shall become liable or responsible
(each and together herein referred to as "Tenant's Agents"); provided,
however, the term "Tenant's Agent's shall
-20-
not include Landlord or any of its directors, officers, partners,
members, shareholders, representatives, agents, contractors, employees,
servants, invitees, patrons, guests, visitors, licensees, tenants
(other than Tenant), assignees or any other party for whom Landlord is
or shall become liable or responsible (collectively, the "Landlord's
Agents"), shall be borne solely by Tenant and shall be deemed Rent
hereunder and shall be reimbursed by Tenant to Landlord within twenty
(20) days after demand therefore is made. Landlord shall not be
required to make any repairs or improvements to the Demised Premises
except structural repairs necessary for safety and tenantability, or
repairs arising out of a claim against Landlord under the express terms
of Article 37(b) herein.
(b) Tenant covenants and agrees that it will keep and maintain
the Demised Premises in good condition and repair, except for casualty,
condemnation and normal wear and tear. Tenant shall at once report, in
writing, to Landlord any defective or dangerous condition actually
known to Tenant. Landlord has no obligation and has made no promise to
alter, remodel, improve, repair, decorate or paint the Demised Premises
or any part thereof, except as specifically and expressly herein set
forth.
(c) Tenant shall be responsible for stopped-up drains where such
stoppage is caused by the introduction by Tenant or Tenant's Agents
from within the Demised Premises of foreign objects not intended for
disposal in such drains. If Landlord shall repair such drains, Tenant
shall reimburse Landlord, as additional Rent, for the costs of such
repairs, together with the costs of any repairs or damage to the
Demised Premises or the Building and to the property of other tenants
or Landlord which results from such stoppage.
16. LANDLORD'S RIGHT OF ENTRY. Landlord shall retain duplicate keys to
all doors of the Demised Premises and Landlord and its agents, employees and
independent contractors shall have the right to enter the Demised Premises at
reasonable hours (upon not less than 24 hours prior notice, except in an
emergency for which no notice shall be required) to inspect, test and examine
the same (including, without limitation, air quality audits), to make repairs,
additions, alterations, and improvements, to exhibit the Demised Premises to
mortgagees, prospective mortgagees, purchasers or, if in the last twelve (12)
months of the Lease Term or while an event of default has occurred and is
continuing, to prospective tenants, and to inspect the Demised Premises to
ascertain that Tenant is complying with all of its covenants and obligations
hereunder, all without being liable to Tenant in any manner whatsoever for any
damages arising therefrom, except to the extent arising under the express terms
of Article 37(b) herein; provided, however, that Landlord shall, except in case
of emergency, afford Tenant such prior notification of an entry into the Demised
Premises as shall be reasonably practicable under the circumstances. Landlord
shall be allowed to take into and through the Demised Premises any and all
materials that may be required to make such repairs, additions, alterations or
improvements. During such time as such work is being carried on in or about the
-21-
Demised Premises, the Rent provided herein shall not xxxxx, and Tenant waives
any claim or cause of action against Landlord for damages, except to the extent
liability would arise under the express terms of Article 37(b) herein. During
such time as such work is being carried on in or about the Demised Premises, the
Rent herein shall not xxxxx, unless Tenant's use and enjoyment of a substantial
portion of the Demised Premises is materially adversely affected for five (5) or
more consecutive Business Days (in which case the Base Rental and Tenant's
Additional Rental shall thereafter xxxxx in the proportion that the Demised
Premises are unusable commencing on the sixth (6th) Business Day after such
interruption and continuing until Tenant is again able to conduct its business
from such portion of the Demised Premises), and Tenant waives any claim or cause
of action against Landlord for damages by reason of interruption of Tenant's
business or loss of profits therefrom because of the prosecution of any such
work or any part thereof, unless such claim would arise under the express terms
of Article 37(b) herein. Landlord does hereby agree to use all reasonable
efforts to minimize any interference with Tenant's business caused by any such
entry.
17. INSURANCE. Tenant shall procure at its expense and maintain
throughout the Lease Term a policy or policies of special form/all-risk
insurance insuring the full replacement cost of its furniture, fixtures,
equipment, supplies, and other property owned, leased, held or possessed by it
and contained in the Demised Premises (subject to a commercially reasonable
deductible) together with the excess value of the improvements to the Demised
Premises over the Construction Allowance (with a replacement cost endorsement)
and worker's compensation insurance as required by applicable law. Tenant shall
also procure at its expense and maintain throughout the Lease Term a policy or
policies of commercial general liability insurance, insuring Tenant, against
risks typically covered by a standard commercial general liability policy
covering Tenants, the limits of such policy or policies to be in combined single
limits for both damage to property and personal injury and in amounts not less
than Three Million Dollars ($3,000,000) for each occurrence. Such insurance
shall, in addition, extend to any liability of Tenant arising out of the
indemnities provided for in this Lease. Tenant shall also carry such other types
of insurance in form and amount which Landlord shall reasonably deem to be
prudent for Tenant to carry, should the circumstances or conditions so merit
Tenant carrying such type of insurance, provided that such insurance is
consistently and customarily required of tenants in other first class office
buildings in the Buckhead Area and is available at commercially reasonable
rates. All insurance policies procured and maintained by Tenant pursuant to this
Article 17 shall name Landlord, any mortgagee, Landlord's property management
company and the asset management company for the Project (if any), as additional
insureds, shall be carried with companies licensed to do business in the State
of Georgia having a rating from Best's Insurance Reports of not less than
A-/VIII, and shall be non-cancelable and not subject to material change except
after the applicable insurance company endeavoring to give thirty (30) days'
written notice to Landlord. Such policies or duly executed certificates of
insurance with respect thereto, accompanied by proof of payment of the premium
therefor, shall be delivered to Landlord prior to the Rental Commencement Date,
and renewals of such policies shall be delivered to Landlord at least thirty
(30) days prior to the expiration of each respective policy term.
Landlord shall procure and maintain at its expense (but with the
expense to be included in Operating Expenses) throughout the Lease Term a policy
or policies of special form/all-risk (including rent loss coverage) real and
personal property insurance covering the Project (including the leasehold
improvements in the Demised Premises up to the amount of the
-22-
Construction Allowance, but excluding Tenant's personal property and equipment),
in an amount equal to the full insurable replacement cost thereof as such may
increase from time to time (but such insurance may provide for a commercially
reasonable deductible), and in an amount sufficient to comply with any
co-insurance requirements in such policy, and a policy of workers' compensation
insurance, if any, as required by applicable law. In addition, Landlord shall
procure and maintain at its expense (but with the expense to be included in
Operating Expenses) and shall thereafter maintain throughout the Lease Term, a
commercial general liability insurance policy covering the Project with combined
single limits for both damage to property and personal injury of not less than
Three Million Dollars ($3,000,000) per occurrence, subject to annual aggregate
limits of not less than Five Million Dollars ($5,000,000). Landlord may also
carry such other types of insurance in form and amounts which Landlord shall
determine to be appropriate from time to time, and coverages with limits in
excess of the limits expressly set forth in this Article, and the cost thereof
shall be included in Operating Expenses, if such insurance or coverage is (i)
required by a mortgagee, or (ii) typically carried by owners of first-class
buildings in the Buckhead Area. All such policies procured and maintained by
Landlord pursuant to this Article 17 shall be carried with companies licensed to
do business in the State of Georgia, having a rating from Best's Insurance
Reports as not less than A-/VIII. Any insurance required to be carried by
Landlord hereunder may be carried under blanket policies covering other
properties of Landlord and/or its partners and/or their respective related or
affiliated corporations so long as such blanket policies provide insurance at
all times for the Project as required by this Lease. The commercial general
liability insurance required to be maintained by Landlord hereunder shall, to
the extent available under a standard commercial general liability policy,
extend to any liability of Landlord arising out of the indemnities provided for
in this Lease.
18. WAIVER OF SUBROGATION. Landlord and Tenant shall each have included
in all policies of fire, extended coverage, business interruption and loss of
rents insurance respectively obtained by them covering the Demised Premises, the
Building and contents therein, a waiver by the insurer of all right of
subrogation against the other in connection with any loss or damage thereby
insured against. Any additional premium for such waiver shall be paid by the
primary insured. To the full extent permitted by law, Landlord and Tenant each
waives all right of recovery against the other for, and agrees to release the
other from liability for, loss or damage to the extent such loss or damage is
covered by valid and collectible insurance in effect at the time of such loss or
damage or would be covered by the insurance required to be maintained under this
Lease by the party seeking recovery.
19. DEFAULT.
(a) The following acts, events or conditions shall be deemed to
be events of default by Tenant under this Lease:
(i) Tenant fails to pay any installment of Rent or any
other charge or assessment against Tenant pursuant to the terms
hereof within five (5) days after the due date thereof and such
failure continues for ten (10) days after notice of such failure
of payment; provided, however, such notice and such grace period
-23-
shall be required of Landlord only two (2) times during any
calendar year, and an event of default shall immediately occur
upon the third (3rd) failure by Tenant to make a timely payment
as aforesaid within that calendar year;
(ii) the failure by Tenant to cease any conduct or
eliminate any condition which poses a material danger to person
or property within twelve (12) hours of receipt of written notice
from Landlord requesting cessation of such conduct or elimination
of such conditions (which notice shall reference this Section
19(a) and the 12 hour requirement hereof to be effective);
(iii) Tenant shall make a general assignment for the
benefit of creditors, or shall admit in writing its inability to
pay its debts as they become due, or shall file a petition in
bankruptcy, or shall be adjudicated as bankrupt or insolvent, or
shall file a petition in any proceeding seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or
future statute, law or regulation, or shall file an answer
admitting or fail timely to contest the material allegations of a
petition filed against it in any such proceeding;
(iv) the rejection by Tenant, its bankruptcy trustee, or
any entity authorized by court order to act on behalf of Tenant,
of this Lease under 11 U.S.C. ss. 365(a) or any other provision
of Title 11 of the United States Code, or the deemed rejection of
this Lease by operation of law under 11 U.S.C. ss. 365(d)(4). Any
such rejection of this Lease terminates this Lease, without
notice of any kind to Tenant, effective on the later of: (1) the
date Tenant vacates the Demised Premises following such
rejection; (2) the date the Bankruptcy Court with jurisdiction
over Tenant's bankruptcy case enters an order on its docket
authorizing Tenant to reject this Lease; or (3) the date this
Lease is deemed rejected under 11 U.S.C. ss. 365(d)(4);
(v) a proceeding is commenced against Tenant seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or
future statute, law or regulation, and such proceeding shall not
have been dismissed within forty-five (45) days after the
commencement thereof;
(vi) a receiver or trustee shall be appointed for the
Demised Premises or for all or substantially all of the assets of
Tenant or of any guarantor of this Lease;
(vii) Tenant shall do or permit to be done anything which
creates a lien upon the Demised Premises or the Project and such
lien is not removed or discharged within fifteen (15) business
days after Tenant has notice of the filing thereof;
-24-
(viii) Tenant shall fail to return a properly executed
instrument to Landlord in accordance with the provisions of
Article 27 hereof within the time period provided for such return
following Landlord's request for same as provided in Article 27,
and Tenant fails to return such instrument within ten (10) days
after Landlord provides notice to Tenant that Tenant has failed
to provide such instrument (with such notice specifically
identifying the instrument not returned and the time period which
Tenant has to return the instrument) within the time required
herein;
(ix) Tenant shall fail to return a properly executed
estoppel certificate to Landlord in accordance with the
provisions of Article 28 hereof within the time period provided
for such return following Landlord's request for same as provided
in Article 28, and Tenant fails to return such instrument within
ten (10) days after Landlord provides notice to Tenant that
Tenant has failed to provide such instrument (with such notice
specifically identifying the instrument not returned and the time
period which Tenant has to return the instrument) within the time
required herein;
(x) Tenant shall fail to comply with any other term,
provision, covenant or warranty made under this Lease by Tenant,
other than the payment of the Rent or any other charge or
assessment payable by Tenant, and shall not cure such failure
within fifteen (15) business days after notice thereof to Tenant,
provided, however, if such failure cannot reasonably be cured by
Tenant within such 15 business day period, no event of default
shall be deemed to occur hereunder unless Tenant shall fail to
commence its cure within such 15 business day period and
thereafter diligently prosecute such cure to completion within a
reasonable period of time
(b) Upon the occurrence of any of the aforesaid events of
default, Landlord shall have the option to pursue any one or more of
the following remedies without any notice or demand whatsoever:
(i) terminate this Lease, in which event Tenant shall
immediately surrender the Demised Premises to Landlord and if
Tenant fails to do so, Landlord may, without notice and without
prejudice to any other remedy Landlord may have for possession or
arrearages in Rent, but in accordance with applicable law, enter
upon and take possession of the Demised Premises and expel or
remove Tenant and any other person who may be occupying said
Demised Premises or any part thereof, and its and their effects,
without being liable for prosecution or any claim of damages
therefor; Tenant hereby agreeing to pay to Landlord on demand the
amount of all loss and damage which Landlord may suffer by reason
of such termination, whether through inability to relet the
Demised Premises on satisfactory terms or otherwise;
-25-
(ii) terminate Tenant's right of possession, without
terminating this Lease, in accordance with applicable law, enter
upon and take possession of the Demised Premises as Tenant's
agent and expel or remove Tenant and any other person who may be
occupying said Demised Premises or any part thereof, and its and
their effects, by entry, dispossessory suit or otherwise, without
thereby releasing Tenant from any liability hereunder, without
terminating this Lease, and without being liable for prosecution
or any claim of damages therefor and, if Landlord so elects, make
such alterations, redecorations and repairs as, in Landlord's
judgment, may be necessary or desired to relet the Demised
Premises, and Landlord may, but shall be under no obligation to
do so, relet the Demised Premises or any portion thereof in
Landlord's or Tenant's name, but for the account of Tenant, for
such term or terms (which may be for a term extending beyond the
Lease Term) and at such rental or rentals and upon such other
terms as Landlord may deem advisable, with or without
advertisement, and by private negotiations, and receive the rent
therefor, Tenant hereby agreeing to pay to Landlord the
deficiency, if any, between all Rent reserved hereunder and the
total rental applicable to the Lease Term hereof obtained by
Landlord upon re-letting, and Tenant shall be liable for
Landlord's damages and expenses in redecorating and restoring the
Demised Premises and all costs incident to such re-letting,
including broker's commissions and lease assumptions. In no event
shall Tenant be entitled to any rentals received by Landlord in
excess of the amounts due by Tenant hereunder. Any such demand,
reentry and taking of possession of the Demised Premises by
Landlord shall not of itself constitute an acceptance by Landlord
of a surrender of the Lease or of the Demised Premises by Tenant
and shall not of itself constitute a termination of this Lease by
Landlord. Landlord's failure to relet the Demised Premises or to
make such alterations, redecorations and repairs as set forth in
this paragraph shall not release or affect Tenant's liability for
Rent or for damages; or
(iii) enter upon the Demised Premises without being liable
for prosecution or any claim of damages therefor, and do whatever
Tenant is obligated to do under the terms of this Lease; and
Tenant agrees to reimburse Landlord on demand for any reasonable
expenses including, without limitation, reasonable attorneys'
fees which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease and Tenant further agrees
that Landlord shall not be liable for any damages resulting to
Tenant from such action, whether caused by negligence of Landlord
or otherwise.
If this Lease is terminated by Landlord as a result of the
occurrence of an event of default, Landlord may declare to be due and
payable immediately, the present value (calculated with a discount
factor of eight percent [8%] per annum) of the difference between (x)
the entire amount of Rent and other charges and assessments which in
Landlord's reasonable determination would become due and payable during
the remainder of the Lease Term determined as though this Lease had not
been terminated (including, but not limited to, increases in Rent
pursuant to Article 7 hereof), and (y) the
-26-
then fair market rental value of the Demised Premises for the remainder
of the Lease Term. Upon the acceleration of such amounts, Tenant agrees
to pay the same at once, together with all Rent and other charges and
assessments theretofore due, at Landlord's address as provided herein,
it being agreed that such payment shall not constitute a penalty or
forfeiture but shall constitute liquidated damages for Tenant's failure
to comply with the terms and provisions of this Lease (Landlord and
Tenant agreeing that Landlord's actual damages in such event are
impossible to ascertain and that the amount set forth above is a
reasonable estimate thereof).
(c) Pursuit of any of the foregoing remedies shall not preclude
pursuit of any other remedy herein provided or any other remedy
provided by law or at equity, nor shall pursuit of any remedy herein
provided constitute an election of remedies thereby excluding the later
election of an alternate remedy, or a forfeiture or waiver of any Rent
or other charges and assessments payable by Tenant and due to Landlord
hereunder or of any damages accruing to Landlord by reason of violation
of any of the terms, covenants, warranties and provisions herein
contained. No reentry or taking possession of the Demised Premises by
Landlord or any other action taken by or on behalf of Landlord shall be
construed to be an acceptance of a surrender of this Lease or an
election by Landlord to terminate this Lease unless written notice of
such intention is given to Tenant. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default
shall not be deemed or construed to constitute a waiver of such
default. In determining the amount of loss or damage which Landlord may
suffer by reason of termination of this Lease or the deficiency arising
by reason of any reletting of the Demised Premises by Landlord as above
provided, allowance shall be made for the expense of repossession.
(d) Upon the occurrence of any event of default by Tenant, Tenant
shall pay to Landlord all reasonable costs actually incurred by
Landlord (including court costs and reasonable attorneys' fees and
expenses) in (i) obtaining possession of the Demised Premises, (ii)
removing and storing Tenant's or any other occupant's property, (iii)
repairing, restoring, renovating, altering, remodeling, or otherwise
putting the Demised Premises into condition acceptable to a new tenant,
(iv) if Tenant is dispossessed of the Demised Premises and this Lease
is not terminated, reletting all or any part of the Demised Premises
(including, but not limited to, brokerage commissions, cost of tenant
finish work, advertising and promotional expenses, and other costs
incidental to such reletting), (v) performing Tenant's obligations
which Tenant failed to perform, and (vi) enforcing its rights,
remedies, and recourses arising out of the default. Landlord's rights
and remedies under this Article 19(d) shall be in addition to the
rights and remedies of Landlord set forth in this Article 19 or
elsewhere in this Lease, and/or which may otherwise be available to
Landlord at law or in equity.
20. WAIVER OF BREACH. No waiver of any breach of the covenants,
warranties, agreements, provisions, or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition or of any subsequent breach thereof,
-27-
and if any breach shall occur and afterwards be compromised, settled or
adjusted, this Lease shall continue in full force and effect as if no breach had
occurred.
21. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not, without the prior written consent of Landlord
(which consent shall not be unreasonably withheld, conditioned or
delayed), assign this Lease or any interest herein or in the Demised
Premises, or mortgage, pledge, encumber, hypothecate or grant any
license or concession or otherwise transfer or sublet the Demised
Premises or any part thereof or permit the use of the Demised Premises
by any party other than Tenant. Consent by Landlord to one or more such
transfers or subleases shall not destroy or waive this provision, and
all subsequent transfers and subleases shall likewise be made only upon
obtaining the prior written consent of Landlord. Without limiting the
foregoing prohibition, in no event shall Tenant assign this Lease or
any interest herein, whether directly, indirectly or by operation of
law, or sublet the Demised Premises or any part thereof or permit the
use of the Demised Premises or any part thereof by any party, (i) if
the proposed assignee or subtenant is a party whose use would detract
from the character of the Building as a first-class building, such as,
without limitation, a dental, medical or chiropractic office or a
governmental office, (ii) if the proposed assignment or subletting
would be to a governmental subdivision or agency or any person or
entity who enjoys diplomatic or sovereign immunity, (iii) for the first
thirty-six (36) months after the Delivery Date, if such proposed
assignee or subtenant is an existing tenant of the Building, unless
Landlord was not able to accommodate the space need of the proposed
assignee or sublessee, or (iv) if such proposed assignment, subletting
or use would contravene any restrictive covenant (including any
exclusive use) granted to any other tenant of the Building. Sublessees
or transferees of the Demised Premises for the balance of the Lease
Term shall become directly liable to Landlord for all obligations of
Tenant hereunder, without relieving Tenant of any liability therefor,
and Tenant shall remain obligated for all liability to Landlord arising
under this Lease during the entire remaining Lease Term including any
extensions thereof, whether or not authorized herein.
(b) As a condition to considering any request for consent to an
assignment or sublease, Tenant shall submit a written request ("Request
to Assign") to Landlord at least ten (10) business days in advance of
the date on which Tenant desires to make such an assignment or
sublease. Tenant's Request to Assign shall specify all of the terms of
said proposed sublease or assignment, including the proposed effective
date thereof, as well as the name and address of each proposed
subtenant or assignee. Landlord may require Tenant to obtain and submit
current financial statements of any proposed subtenant or assignee
(including, without limitation, current financial statements of any
prospective guarantor). Landlord shall then have a period of ten (10)
business days following receipt of Tenant's Request to Assign within
which to notify Tenant in writing whether Landlord elects to: (i)
permit Tenant to assign this Lease or sublet such space for the
duration specified by Tenant in its notice; or (ii) reject the proposed
assignment or sublease. If Landlord fails to notify Tenant in writing
of its election within the ten (10) business day
-28-
period, Landlord shall be deemed to have elected option (ii) above. In
the event Landlord consents to an assignment or sublease, Tenant shall
pay to Landlord a fee (not to exceed $2,500.00 per occurrence or
request) to cover Landlord's accounting costs and legal fees incurred
by Landlord as a result of the assignment or sublease. No assignment of
this Lease consented to by Landlord shall be effective unless and until
Landlord shall receive an original assignment and assumption agreement,
in form and substance satisfactory to Landlord, signed by Tenant and
Tenant's proposed assignee, whereby the assignee assumes due
performance of this Lease to be done and performed for the balance of
the then remaining Lease Term of this Lease. Except for subleases under
Article 21(d) herein, no subletting of the Demised Premises, or any
part thereof, shall be effective unless and until there shall have been
delivered to Landlord an agreement, in form and substance satisfactory
to Landlord, signed by Tenant and the proposed sublessee, whereby the
sublessee acknowledges the right of Landlord to continue or terminate
any sublease, in Landlord's sole discretion, upon termination of this
Lease, and such sublessee agrees to recognize and attorn to Landlord in
the event that Landlord elects under such circumstances to continue
such sublease.
(c) In an assignment or sublease is consented to by Landlord
under this Article, Tenant and Landlord agree that fifty percent (50%)
of all Net Profit actually received by Tenant from such sublease or
assignment shall be paid by Tenant to Landlord as an additional Rent
hereunder as and when received by Tenant. For purposes hereof, the term
"Net Profit" shall mean the gross revenue received from the assignee or
sublessee, less (i) the Rent paid to Landlord by Tenant with respect to
the subleased space during the period of the sublease term or
attributable to the period from and after the effective date of the
assignment; (ii) the Rent paid to Landlord by Tenant with respect to
the subleased space or the space subject to such assignment during the
period between the date Tenant ceased all business operations in such
space and the commencement of the sublease term or the effective date
of the assignment; (iii) any improvement allowance or other economic
concession (planning allowance, moving expenses, etc.) actually paid by
Tenant to the sublessee or assignee, (iv) reasonable brokerage
commissions or attorney's fees actually paid in connection with such
sublease or assignment; (v) lease takeover payments and reasonable
costs of advertising the space for sublease or assignment actually paid
by Tenant; (vi) the unamortized cost of initial and subsequent
improvements to the Demised Premises made by Tenant at Tenant's expense
(and without reimbursement from the Improvement Allowance or
otherwise). When a portion of the Demised Premises is sublet, in
calculating the Net Profit from such sublease, the cost of Tenant
attributable to the sublet space but attributable to some larger
portion of the Demised Premises shall be prorated on the basis of
Rentable Floor Area. Tenant shall not be obligated to take collection
or enforcement action against any subtenant or assignee.
(d) Tenant shall have the right to assign the Lease or sublet the
Demised Premises, or any part thereof, without Landlord's consent, but
subject to Landlord's rights to notice and prohibition contained
herein, to any parent, subsidiary, affiliate or controlled entity or to
any entity which Tenant may be converted or with which Tenant
-29-
may merge, or to any entity acquiring all or substantially all of
Tenant's stock or assets. Tenant shall in any event have the obligation
to notify Landlord of its intent of any such arrangement, and if
Landlord reasonably determines that the proposed assignee or sublessee
is engaged in a business which would materially interfere with the
operation of the Property or that permitting the assignment or
subletting would cause a violation by Landlord of its obligations under
any lease covering a portion of the Project, Landlord shall have the
right to prohibit such arrangement based upon the aforesaid factors.
22. LANDLORD'S TERMINATION RIGHTS
(a) If the Project or any portion thereof is substantially damaged
by a fire, storm, wind, water, any act of nature or God, or any other matter
beyond the control of Landlord (a "Casualty") not required to be insured against
by Landlord hereunder or if the Project or any portion thereof is substantially
damaged by Casualty required to be insured against by Landlord but the insurance
company is insolvent and financially unable to pay the proceeds which are due
(through no fault of Landlord), Landlord shall have the right to terminate this
Lease by notice to Tenant given within ninety (90) days after the date of such
Casualty (the "Damage Date"), provided, however, Landlord will not terminate
this Lease pursuant to this subparagraph (a) unless Landlord terminates the
leases of all tenants of the Building whose premises (or access thereto) are
similarly affected by such Casualty. As used in this Article, the term
"substantially damaged" shall mean such damage that the cost of repair and
restoration thereof is reasonably estimated by Landlord's architect to exceed
Five Million Dollars ($5,000,000).
(b) If the entire Building or a substantial portion thereof (which
may or may not include all or a part of the Demised Premises), or the Building
systems or structural components of the Building (whether or not the Demised
Premises are directly affected) are substantially damaged or destroyed and such
damage or destruction is to the extent that in the reasonable opinion of
Landlord's architect delivered in writing to both parties within sixty (60) days
after the Damage Date, the damage cannot be repaired or restored within three
hundred sixty-five (365) days after the Damage Date, Landlord may terminate this
Lease by giving Tenant notice within eighty (80) days after the Damage Date;
provided, however, Landlord agrees that it will not terminate this Lease
pursuant to this subparagraph (b) unless Landlord terminates the leases of all
tenants of the Building whose premises (or access thereto) are similarly
affected by such Casualty.
(c) Notwithstanding anything contained in this Article 22 to the
contrary, if Landlord is obligated to restore the Demised Premises or any part
of the Project as a result of a Casualty, and (i) if the cost of performing such
restoration exceeds the actual proceeds of insurance paid or payable to Landlord
on account of such Casualty by more than Five Million Dollars ($5,000,000)
("Landlord's Required Contribution"), or (ii) if Landlord's Mortgagee or the
lessor under a ground or underlying lease shall require that any insurance
proceeds from a Casualty be paid to it and the cost of such restoration exceeds
the actual proceeds of insurance received by Landlord and not paid to such
Mortgagee or lessor by more than Landlord's Required Contribution, Landlord may
terminate this Lease unless Tenant, within twenty (20) days after demand
therefor, deposits with Landlord a sum of money sufficient to pay the
-30-
difference between (y) the cost of restoration and (z) the sum of Landlord's
Contribution and the proceeds of the insurance received by and available to
Landlord for such restoration. In the event Tenant makes such deposit pursuant
to the preceding sentence in order to avoid the termination of this Lease,
Tenant shall have the right to set off up to One Million Dollars ($1,000,000) of
the amount so deposited by Tenant against the Rent next thereafter coming due
under this Lease. Landlord agrees that Landlord will not terminate this Lease
pursuant to this subparagraph (c) unless Landlord terminates the leases of all
tenants of the Building whose premises (or access thereto) is similarly affected
by such Casualty.
22.1 TENANT'S TERMINATION RIGHTS. If the Demised Premises are
damaged or destroyed by Casualty, or if any portion of the Project other than
the Demised Premises (including, without limitation, the Building or Building
Parking Facilities) is damaged by Casualty such that Tenant's use or enjoyment
of or access to the Demised Premises or the Project is materially adversely
affected and if, in the reasonable opinion of Landlord's architect, given in
writing to both parties within sixty (60) days after the Damage Date, the
Demised Premises and such other portions of the Project cannot be repaired or
restored to the condition in all material respects that existed prior to the
Casualty within three hundred sixty-five (365) days after the Damage Date,
Tenant may terminate this Lease by giving notice to Landlord within ninety (90)
days after the Damage Date. In addition to the termination right granted to
Tenant under the preceding sentence, if the Demised Premises are damaged or
destroyed by Casualty, or if any portion of the Project other than the Demised
Premises is damaged by Casualty such that Tenant's use or enjoyment of or access
to the Demised Premises or the Project is materially adversely affected, and if
the Demised Premises and/or such portion of the Project are not materially
restored by Landlord to the extent required of Landlord hereunder on or before
the date which is fourteen (14) months after the Damage Date, Tenant shall have
the right to terminate this Lease by giving written notice thereof to Landlord
on or before the earlier to occur of (i) the date which is sixteen (16) months
after the Damage Date, or (ii) the date that Landlord has substantially
completed the restoration of the Demised Premises and any portion of the
Building required for access to the Demised Premises, as the case may be;
provided, however, that if construction or reconstruction is delayed because of
changes, deletions or additions in construction requested by Tenant, or because
of Excusable Delays, the fourteen (14) month period for restoration, repair or
rebuilding shall be extended for the amount of time Landlord is so delayed, but
unless the delay is caused by Tenant or its employees or by Tenant's agents or
contractors (acting within the scope of their agency or contract), the extension
under this proviso shall not exceed an additional two (2) months.
If Landlord's architect shall determine that the Demised Premises
and/or Project cannot be repaired or restored to the condition in all material
respects that existed prior to the Casualty within three hundred sixty-five
(365) days after the Damage Date, Landlord's architect shall specify in its
opinion the additional time reasonably required for such repairs or restoration.
In the event Tenant has the right in such circumstance to terminate this Lease
pursuant to the preceding grammatical paragraph, but Tenant does not elect to so
terminate this Lease, the fourteen (14) and sixteen (16)-month periods described
in the preceding paragraph shall each be extended by such additional time so
specified in the opinion of Landlord's architect.
-31-
22.2 TERMINATION RIGHTS DURING LAST TWO (2) YEARS. Notwithstanding
anything in this Article 22 to the contrary, if the Building is substantially
damaged or destroyed by Casualty at any time during the last two (2) years of
the Lease Term, and Landlord elects not to rebuild and restore the leasehold
improvements in the Demised Premises for Tenant, then Landlord may terminate
this Lease upon notice to the Tenant within sixty (60) days after the Damage
Date provided that if Landlord exercises such election to terminate and Tenant
has any unexercised option to extend the Lease Term, then Tenant may nullify
Landlord's asserted termination of this Lease by exercising Tenant's right to
extend the Lease Term, pursuant to Article 53 hereof, for the Extended Term
within thirty (30) days after receipt of Landlord's notice of termination. Also,
notwithstanding anything in this Article 22 to the contrary, if either the
Demised Premises is materially damaged or destroyed by Casualty, or if any
portion of the Building or Project other than the Demised Premises (including
the Building Parking Facilities) is damaged or destroyed by Casualty so that
Tenant's use or enjoyment of or access to the Demised Premises is materially
adversely affected, and such Casualty occurs during the last two (2) years of
the Lease Term, Tenant may terminate this Lease upon notice to Landlord within
thirty (30) days after the Damage Date, provided that Tenant reasonably
determines that the continuation of this Lease is impracticable giving due
consideration to the Lease Term which would remain after restoration.
22.3 LANDLORD'S RESTORATION OBLIGATIONS.If neither Landlord nor
Tenant has the right to terminate this Lease pursuant to the foregoing
provisions of this Article 21, or if the party or parties that have the right to
terminate this Lease do not exercise such right as hereinabove provided,
Landlord shall have the property damaged by such Casualty repaired or restored
to the condition in all material respects that existed prior to the Casualty at
the sole expense of the Landlord but Landlord's repair obligations as to the
leasehold improvements shall be limited to the work provided with and paid for
by the Construction Allowance. Tenant shall pay all other costs of repairing the
leasehold improvements in the Demised Premises. An equitable abatement in Rent
shall be allowed from the Damage Date for Tenant's loss of use or access until
such time that the damage has been repaired or restored in all material respects
to its condition prior to the Casualty. Landlord's architect shall deliver a
notice to both parties within sixty (60) days after the Damage Date stating the
time required to repair and restore the damage caused by any Casualty and if
Landlord is obligated hereunder to repair and restore such damage, Landlord
shall use all reasonable efforts in good faith to repair and restore such damage
within the estimated time period, subject to Tenant's rights under Article 22.2
hereof.
22.4 LANDLORD'S ARCHITECT; TERMINATION CONDITIONS. The opinions of
and notices from Landlord's architect contemplated in Articles 22.1, 22.2 and
22.4 hereof shall be rendered or given, as the case may be, by a reputable,
qualified, licensed architect selected by Landlord. In the event of any
termination of this Lease by either party pursuant to this Article 22, Base
Rental, Tenant's Forecast Additional Rental, and Tenant's Additional Rental and
any other payments due hereunder shall be apportioned and paid to the date of
termination and Tenant shall vacate the Demised Premises as soon as reasonably
possible following the date of such termination (but in no event later than
thirty [30] days after Tenant is permitted access to the Demised Premises
following termination); provided, however, that those matters of this Lease
which are designated to cover matters of termination and the period thereafter
shall survive the termination hereof.
-32-
22.5 REAFFIRMATION OF LEASE. Upon the occurrence of any damage to,
or destruction of the Demised Premises or any portion of the Project other than
the Demised Premises which materially, adversely affects Tenant's use or
enjoyment of, or access to, the Demised Premises, and provided that either
Tenant does not have the right hereunder to terminate this Lease as a result of
such damage or Tenant does have the right hereunder to terminate this Lease but
has elected not to (or has failed to) terminate this Lease as provided herein,
Tenant shall, within ten (10) Business Days after receipt by Tenant of a written
request therefor from Landlord and the receipt by Tenant from Landlord or
Landlord's architect, as the case may be, of all notices, elections and other
information Tenant may reasonably require in order to make any election
permitted under this Article 22, provide Landlord with a written reaffirmation
of this Lease, including an acknowledgment that Tenant does not have the right
to terminate this Lease as a result of such damage or that Tenant had the right
to terminate this Lease but has elected not to (or has failed to) terminate this
Lease as herein provided.
23. INTENTIONALLY DELETED.
24. SERVICES BY LANDLORD. Landlord shall provide the Building Standard
Services described on EXHIBIT "E" attached hereto and by reference made a part
hereof. Any services requested or required to be supplied to Tenant in excess of
the Building Standard Services shall be at Tenant's sole cost and expense and
shall be paid for by Tenant promptly upon invoice therefor, which invoice may
include Landlord's administrative costs and a fee of ten percent (10%) for such
provision. Except as may be expressly provided elsewhere in this Lease, nothing
herein shall be deemed to require Landlord to provide to Tenant any services in
excess of the Building Standard Services.
25. ATTORNEYS' FEES AND HOMESTEAD. If either party commences an action
against the other arising out of or in connection with the Lease, the prevailing
party shall be entitled to recover from the losing party reasonable attorney's
fees and costs of suit. Tenant waives all homestead rights and exemptions which
it may have under any law as against any obligation owing under this Lease, and
assigns to Landlord its homestead and exemptions to the extent necessary to
secure payment and performance of its covenants and agreements hereunder. If
Tenant files a voluntary petition under any Chapter of Title 11 of the United
States Code, or if an involuntary petition is filed against Tenant seeking
relief under any Chapter of Title 11 of the United States Code, Tenant
acknowledges that Landlord may, at its option, retain an attorney to represent
Landlord in such bankruptcy case.
26. TIME. Time is of the essence of this Lease and whenever a certain
day is stated for payment or performance of any obligation of Tenant or
Landlord, the same enters into and becomes a part of the consideration hereof.
-33-
27. SUBORDINATION AND ATTORNMENT.
(a) Tenant agrees that this Lease and all rights of Tenant hereunder
are and shall be subject and subordinate to any ground or underlying lease which
may now or hereafter be in effect regarding the Project or any component
thereof, to any mortgage now or hereafter encumbering the Demised Premises or
the Project or any component thereof, to all advances made or hereafter to be
made upon the security of such ground or underlying lease or mortgage, to all
amendments, modifications, renewals, consolidations, extensions, and
restatements of such ground or underlying lease or mortgage, and to any
replacements and substitutions for such mortgage; provided, however, that as a
condition to Tenant subordinating to any such mortgage or ground lease, Landlord
shall obtain and deliver to Tenant from any present or future mortgagee,
trustee, fee owner, prime lessor or any person having an interest in the
Premises superior to this Lease (a "Superior Interest") a commercially
reasonable written subordination and non-disturbance agreement in recordable
form, as specified in Article 27(b) below, which does not amend the terms of
this Lease. Landlord shall, simultaneously with the placing of any mortgage on
the Building, the Land, or the Project, provide Tenant with a fully executed
subordination and non-disturbance agreement in recordable form and otherwise
reasonably satisfactory to Tenant from all parties holding a Superior Interests
in the Property. Landlord represents and warrants that, as of the date hereof,
there is no Superior Interest with respect to this Lease. Upon request of any
party in interest, Tenant shall execute promptly (but in any event within twenty
(20) days of request therefor) such instrument or certificates as may be
reasonably required to carry out the intent hereof, whether said requirement is
that of Landlord or any other party in interest, including, without limitation,
any ground lessor or mortgagee.
(b) Tenant agrees that within twenty (20) days after a request from
Landlord or from the holder or proposed holder of any Mortgage, Tenant shall
subordinate its interest under this Lease to the lien or interest of any
Mortgage which may hereafter be executed in any amount for which the Building or
Landlord's interest or estate in the Building is specified as security, by
executing a Subordination, Non-Disturbance and Attornment Agreement
substantially in the form attached hereto as EXHIBIT "K" and by this reference
made a part hereof; provided, however, such subordination is conditioned upon
the holder of any such Mortgage and Landlord executing in recordable form and
delivering said Subordination, Non-Disturbance and Attornment Agreement to
Tenant. Tenant agrees to make such reasonable modifications to EXHIBIT "K" as
Landlord's lenders may request; provided, that, in Tenant's commercially
reasonable opinion, any such modification does not change the economic terms of
this Lease in a manner adverse to Tenant's position and does not materially
impair Tenant's other rights under this Lease or under the form of
Subordination, Non-disturbance and Attornment Agreement. Tenant shall have the
right to modify or correct any certificate or warranty contained in such form
which would otherwise be incorrect.
(c) If any mortgagee or any lessor under a ground or
underlying lease elects to have this Lease superior to its mortgage or
lease and signifies its election in the instrument creating its lien or
lease or by separate recorded instrument, then this Lease shall be
superior to such mortgage or lease, as the case may be. The term
"mortgage", as used in this Lease, includes any deed to secure debt,
deed of trust or security deed and any other instrument creating a lien
or security title in connection with any other method of financing or
refinancing. The term "mortgagee", as used in this Lease, refers to the
holder(s) of the indebtedness secured by a mortgage.
-34-
(d) In the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under,
any mortgage covering the Demised Premises or the Project, or in the
event the interests of Landlord under this Lease shall be transferred
by reason of deed in lieu of foreclosure or other legal proceedings, or
in the event of termination of any lease under which Landlord may hold
title, Tenant shall, at the option of the transferee or purchaser at
foreclosure or under power of sale, or the lessor of the Landlord upon
such lease termination, as the case may be (sometimes hereinafter
called "such person"), attorn to such person and shall recognize and be
bound and obligated hereunder to such person as the Landlord under this
Lease; provided, however, that no such person shall be (i) bound by any
payment of Rent for more than one (1) month in advance, except
prepayments in the nature of security for the performance by Tenant of
its obligations under this Lease (and then only if such prepayments
have been deposited with and are under the control of such person);
(ii) bound by any amendment or modification of this Lease made without
the express written consent of the mortgagee or lessor of the Landlord,
as the case may be; (iii) obligated to cure any defaults under this
Lease of any prior landlord (including Landlord); (iv) liable for any
act or omission of any prior landlord (including Landlord); (v) subject
to any offsets or defenses which Tenant might have against any prior
landlord (including Landlord); or (vi) bound by any warranty or
representation of any prior landlord (including Landlord) relating to
work performed by any prior landlord (including Landlord) under this
Lease. Tenant agrees to execute any attornment agreement not in
conflict herewith requested by Landlord, the mortgagee or such person.
Tenant's obligation to attorn to such person shall survive the exercise
of any such power of sale, foreclosure or other proceeding. Tenant
agrees that the institution of any suit, action or other proceeding by
any mortgagee to realize on Landlord's interest in the Demised Premises
or the Building pursuant to the powers granted to a mortgagee under its
mortgage, shall not, by operation of law or otherwise, result in the
cancellation or termination of the obligations of the Tenant hereunder.
Landlord and Tenant agree that notwithstanding that this Lease is
expressly subject and subordinate to any mortgages, any mortgagee, its
successors and assigns, or other holder of a mortgage or of a note
secured thereby, may sell the Demised Premises or the Building, in the
manner provided in the mortgage and may, at the option of such
mortgagee, its successors and assigns, or other holder of the mortgage
or note secured thereby, make such sale of the Demised Premises or
Building subject to this Lease.
28. ESTOPPEL CERTIFICATES. Within twenty (20) days after request
therefor by Landlord, Tenant agrees to execute and deliver to Landlord in
recordable form an estoppel certificate addressed to Landlord, any mortgagee or
assignee of Landlord's interest in, or purchaser of, the Demised Premises or the
Building or any part thereof, certifying (if such be the case) that this Lease
is unmodified and is in full force and effect (and if there have been
modifications, that the same is in full force and effect as modified and stating
said modifications); certifying that to Tenant's actual knowledge there are no
defenses or offsets
-35-
against the enforcement thereof or stating those claimed by Tenant; stating the
date to which Rent and other charges have been paid; and certifying that to
Tenant's actual knowledge there are no events of default or events or conditions
which, with the giving of notice or passage of time, would be an event of
default under this Lease. Such certificate shall also include such other
information as may reasonably be required by such mortgagee, proposed mortgagee,
assignee, purchaser or Landlord. Any such certificate may be relied upon by
Landlord, any mortgagee, proposed mortgagee, assignee, purchaser and any other
party to whom such certificate is addressed.
29. NO ESTATE. This Lease shall create the relationship of landlord and
tenant only between Landlord and Tenant and no estate shall pass out of
Landlord. Tenant shall have only an usufruct, not subject to levy and sale and
not assignable in whole or in part by Tenant except as herein provided.
30. CUMULATIVE RIGHTS. All rights, powers and privileges conferred
hereunder upon the parties hereto shall be cumulative to, but not restrictive
of, or in lieu of those conferred by law.
31. HOLDING OVER.
(a) Subject to the terms of Article 31(b) below, if Tenant
remains in possession after expiration or termination of the Lease Term
with or without Landlord's written consent, Tenant shall become a
tenant-at-sufferance, and there shall be no renewal of this Lease by
operation of law. During the period of any such holding over, all
provisions of this Lease shall be and remain in effect except that the
monthly rental shall be 150% of the amount of Base Rental (including
any adjustments as provided herein), plus Tenant's Additional Rental,
payable for the last full calendar month of the Lease Term, including
renewals or extensions. The inclusion of the preceding sentence in this
Lease shall not be construed as Landlord's consent for Tenant to hold
over. Such holdover rent shall be Landlord's sole and exclusive damages
for any such holdover, for the first three (3) months of any such
holdover.
(b) Provided Tenant does not exercise the right to extend the
Lease Term for the Extended Term, and provided that Tenant shall give
twelve (12) months prior written notice to Landlord of its election to
do so, Tenant shall have the right to remain in possession of the
Demised Premises after the expiration of the Lease Term for a fixed
period specifically designated in Tenant's notice, but not to exceed
six (6) months. During such fixed period designated by Tenant (but not
to exceed six [6] months), all provisions of this Lease shall be and
remain in effect, except that the monthly Base Rental shall be one
hundred and ten percent (110%) of the amount of monthly Base Rental
payable for the last full calendar month of the Lease Term.
32. SURRENDER OF PREMISES. Upon the expiration or other termination of
this Lease, Tenant shall quit and surrender to Landlord the Demised Premises and
every part thereof and all alterations, additions and improvements thereto,
broom clean and in good condition and state of repair, reasonable wear and tear,
damage due to Casualty and Condemnation which is not
-36-
Tenant's responsibility to repair or restore, excepted. Tenant shall remove all
personalty and equipment not attached to the Demised Premises which it has
placed upon the Demised Premises, and Tenant shall restore the Demised Premises
to the condition immediately preceding the time of placement thereof, reasonable
wear and tear and damage to Casualty and Condemnation which is not Tenant's
responsibility to repair or restore, excepted. At Landlord's option, Tenant
shall also be responsible for removing all wires and cables installed by Tenant
in the Demised Premises and other portions of the Building to serve Tenant's
telecommunications and computer systems in the Demised Premises, and the removal
of such wires and cables shall be effected by Tenant without damage to the
Building and without interference with the business or operations of Landlord or
any other tenant of the Building. If Tenant shall fail or refuse to remove all
of Tenant's effects, personalty and equipment from the Demised Premises and the
Building upon the expiration or termination of this Lease for any cause
whatsoever or upon the Tenant being dispossessed by process of law or otherwise,
such effects, personalty and equipment shall be deemed conclusively to be
abandoned and may be appropriated, sold, stored, destroyed or otherwise disposed
of by Landlord without written notice to Tenant or any other party and without
obligation to account for them. Tenant shall pay Landlord on demand any and all
expenses incurred by Landlord in the removal of such property, including,
without limitation, the cost of repairing any damage to the Building or Project
caused by the removal of such property and storage charges (if Landlord elects
to store such property). The covenants and conditions of this Article 32 shall
survive any expiration or termination of this Lease.
33. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and may be delivered in person to either party or may be
sent by courier, recognized national overnight delivery service or by United
States Mail, certified, return receipt requested, postage prepaid. Any such
notice shall be deemed received by the party to whom it was sent (i) in the case
of personal delivery, courier delivery or recognized overnight delivery service,
on the date of delivery to such party, and (ii) in the case of certified mail,
the date receipt is acknowledged on the return receipt for such notice, and
(iii) if delivery is rejected or refused or the courier, overnight delivery
service or U.S. Postal Service is unable to deliver same because of changed
address of which no notice was given pursuant hereto, the first date of such
rejection, refusal or inability to deliver. All such notices shall be addressed
to Landlord or Tenant at their respective address set forth hereinabove or at
such other address as either party shall have theretofore given to the other by
notice as herein provided. Tenant hereby designates and appoints as its agent to
receive notice of all dispossessory or distraint proceedings and all other
notices required under this Lease, the chief financial officer, at the Demised
Premises, or, if such person is not available, then another person with
authority to accept service of process, at the Demised Premises.
34. DAMAGE OR THEFT OF PERSONAL PROPERTY. All personal property brought
into Demised Premises by Tenant, or Tenant's employees or business visitors,
shall be at the risk of Tenant only, and Landlord shall not be liable for theft
thereof or any damage thereto occasioned by any act of co-tenants, occupants,
invitees or other users of the Building or any other person, unless liability
would arise under the express terms of Article 37(b) herein. Landlord shall not
at any time be liable for damage to any property in or upon the Demised
Premises, which results from power surges or other deviations from the constancy
of the electrical service or from gas,
-37-
smoke, water, rain, ice or snow which issues or leaks from or forms upon any
part of the Building or from the pipes or plumbing work of the same, or from any
other place whatsoever, unless arising under the express terms of Article 37
herein.
35. EMINENT DOMAIN.
(a) If all or part of the Demised Premises shall be taken for
any public or quasi-public use by virtue of the exercise of the power
of eminent domain or by private purchase in lieu thereof, this Lease
shall terminate as to the part so taken as of the date of taking, and,
in the case of a partial taking, either Landlord or Tenant shall have
the right to terminate this Lease as to the balance of the Demised
Premises by written notice to the other within thirty (30) days after
such date; provided, however, that a condition to the exercise by
Tenant of such right to terminate shall be that the portion of the
Demised Premises taken shall be of such extent and nature as materially
to handicap, impede or impair Tenant's use of the balance of the
Demised Premises for its normal business operations. If title to a
portion of the Building or Project is taken (even if no part of the
Demised Premises is taken) and such taking results in a material
adverse affect to Tenant's use and occupancy of the Demised Premises or
Tenant's access to the Building Parking Facilities or the Demised
Premises (and Landlord does not alleviate the effects of such taking by
repairs or replacements made within a reasonable time after such
taking), Tenant may terminate this Lease by written notice thereof to
Landlord within seventy-five (75) days after the date of such taking;
provided, however, Landlord may nullify such termination by Tenant by
giving written notice to Tenant within ten (10) days after receipt of
such termination notice that such material adverse affect will be so
alleviated as soon as reasonably possible, and in any event within
three hundred fifty-five (355) days of the date of such nullification
notice. If title to so much of the Building is taken that a reasonable
amount of reconstruction thereof will not in Landlord's sole discretion
result in the Building being a practical improvement and reasonably
suitable for use for the purpose for which it is designed, and provided
Landlord elects not to reconstruct the remaining portion of the
Building for general office use and terminates the leases of all
tenants of the Building whose premises (or any portion thereof) are so
taken, then Landlord shall have the right to terminate this Lease by
written notice to Tenant within sixty (60) days after the date of such
taking.
(b) If the Demised Premises or Tenant's access to the Building
Parking Facilities or to the Demised Premises are not materially
repaired or restored within two (2) months after the 365-day period
referred to in subparagraph (a) above, Tenant shall have the right to
terminate this Lease by giving written notice thereof to Landlord on or
before the earlier to occur of (i) the date which is four (4) months
after the 365-day period referred to in subparagraph (a) above or (ii)
the date that Landlord has substantially completed the repair or
restoration of the Demised Premises or Tenant's access to the Building
Parking Facilities and Demised Premises; provided, however, if repairs
or restoration is delayed because of changes, deletions or additions in
construction requested by Tenant, or because of Excusable Delays, the
foregoing period for repair and restoration shall be extended for the
amount of time Landlord is so delayed, but unless the delay is caused
by Tenant, its agents, contractors or employees, the extension under
this proviso shall not exceed an additional sixty (60) days.
-38-
If Landlord shall determine that the Demised Premises or
Tenant's access to the Building Parking Facilities or to the Demised
Premises cannot be repaired or restored as required of Landlord herein
within the 365-day period referred to in subparagraph (a) above, will
specify in a notice to Tenant the additional time reasonably required
for such repairs and restorations. In the event Tenant has the right in
such circumstance to terminate this Lease pursuant to the preceding
grammatical paragraph of this subparagraph (b), but Tenant does not
elect to so terminate this Lease, the two (2) and four (4) month
periods described in the preceding grammatical paragraph shall each be
extended by such additional time so specified in Landlord's notice.
(c) If this Lease is terminated under the provisions of this
Article 35, Rent shall be apportioned and adjusted as of the date of
termination. Tenant shall have no claim against Landlord or against the
condemning authority for the value of any leasehold estate or for the
value of the unexpired Lease Term (and Tenant hereby assigns to
Landlord any right or interest to any award applicable thereto),
provided that the foregoing shall not preclude any claim that Tenant
may have against the condemning authority for the unamortized cost of
leasehold improvements, to the extent the same were installed at
Tenant's expense (and not with the proceeds of the Improvement
Allowance), or for loss of business, moving expenses or other
consequential damages, in accordance with subparagraph (e) below.
(d) If there is a partial taking of the Building and/or
Building Parking Facilities and this Lease is not thereupon terminated
under the provisions of this Article 35, then this Lease shall remain
in full force and effect, and Landlord shall, within a reasonable time
thereafter, repair or reconstruct the remaining portion of the Building
and/or Building Parking Facilities to the extent necessary to make the
same a complete architectural unit; provided that in complying with its
obligations hereunder Landlord shall not be required to expend more
than the net proceeds of the condemnation award which are paid to
Landlord and available to Landlord for repair and reconstruction plus
Landlord's Required Contribution. If the portion of the Building,
Building Parking Facilities or the Demised Premises taken shall be of
such extent and nature as substantially to handicap, impede or impair
the conduct of Tenant's business in the Demised Premises or Tenant's
access thereto and Landlord does not restore the Building, Building
Parking Facilities and Demised Premises as set forth above because the
amount of condemnation award paid to Landlord is insufficient by more
than Landlord's Required Contribution or because the holder of a
Mortgage demands and retains all or any portion of such condemnation
award for reduction of the debt secured by such Mortgage and the cost
of reconstruction will exceed the portion of such condemnation award
available to Landlord for reconstruction by more than Landlord's
Required Contribution, either party shall have the right to terminate
this Lease until such time as, if ever, Landlord commences restoration,
and upon commencing such restoration, Landlord agrees to complete same
within a reasonable time thereafter. In the event Tenant is unable to
operate its business in the Demised Premises or any portion thereof as
a result of Landlord's restoration of the Building as provided herein,
then Base Rental,
-39-
Tenant's Forecast Additional Rental and Tenant's Additional Rental
under this Lease shall xxxxx in proportion that the Demised Premises
are unusable until the entire Demised Premises (or portion thereof that
was rendered unusable) are again usable.
(e) All compensation awarded or paid to Landlord upon a total
or partial taking of the Demised Premises or the Building shall belong
to and be the property of Landlord without any participation by Tenant.
Nothing herein shall be construed to preclude Tenant from prosecuting
any claim directly against the condemning authority for loss of
business, for damage to, and cost of removal of, trade fixtures,
furniture and other personal property belonging to Tenant, and for the
unamortized cost of leasehold improvements to the extent same were
installed at Tenant's expense (and not with the proceeds of the
Improvement Allowance), provided, however, that no such claim shall
diminish or adversely affect Landlord's award. Tenant shall not have or
assert a claim for the value of any unexpired term of this Lease.
Subject to the foregoing provisions of this subparagraph (e), Tenant
hereby assigns to Landlord any and all of its right, title and interest
in or to any compensation awarded or paid as a result of any such
taking.
(f) Notwithstanding anything to the contrary contained in this
Article, if, during the Lease Term, the use or occupancy of any part of
the Building or the Demised Premises shall be taken or appropriated
temporarily for any public or quasi-public use under any governmental
law, ordinance, or regulations, or by right of eminent domain, this
Lease shall be and remain unaffected by such taking or appropriation
and Tenant shall continue to pay in full all Rent payable hereunder by
Tenant during the Lease Term. In the event of any such temporary
appropriation or taking, Tenant shall be entitled to receive that
portion of any award which represents compensation for the loss of use
or occupancy of the Demised Premises during the Lease Term, and
Landlord shall be entitled to receive that portion of any award which
represents the cost of restoration and compensation for the loss of use
or occupancy of the Demised Premises after the end of the Lease Term.
Notwithstanding the foregoing, if any such temporary taking is of a
material portion of the Demised Premises and continues for more than
one (1) year, Tenant shall have the right to terminate this Lease by
written notice to Landlord at any time during the continuation of such
temporary taking.
(g) If there is a partial taking of the Building or the
Building Parking Facilities and this Lease is not thereupon terminated
under the provisions of this Article, Tenant shall, within ten (10)
days after receipt by Tenant of a written request therefor from
Landlord, provide Landlord with a written reaffirmation of this Lease,
including an acknowledgment that Tenant does not have the right to
terminate this Lease as a result of such taking or that Tenant had the
right to terminate this Lease but has elected not to (or has failed to)
terminate this Lease as herein provided.
36. PARTIES. The term "Landlord", as used in this Lease, shall include
Landlord and its assigns and successors. It is hereby covenanted and agreed by
Tenant that should Landlord's interest in the Demised Premises cease to exist
for any reason during the Lease Term, then notwithstanding the happening of such
event, this Lease nevertheless shall remain in full force and effect, and Tenant
hereby agrees to attorn to the then owner of the Demised Premises. The term
"Tenant" shall include Tenant and its heirs, legal representatives and
successors, and shall
-40-
also include Tenant's assignees and sublessees, if this Lease shall be validly
assigned or the Demised Premises sublet for the balance of the Lease Term or any
renewals or extensions thereof. In addition, Landlord and Tenant covenant and
agree that Landlord's right to transfer or assign Landlord's interest in and to
the Demised Premises, or any part or parts thereof, shall be unrestricted, and
that in the event of any such transfer or assignment by Landlord which includes
the Demised Premises, so long as such assignee or transferee assumes in writing
all of Landlord's obligations hereunder, Landlord's obligations to Tenant
hereunder shall cease and terminate, and Tenant shall look only and solely to
Landlord's assignee or transferee for performance thereof.
37. INDEMNIFICATIONS BY TENANT AND LANDLORD. (a) Subject to Article 17
and 18 above, Tenant hereby indemnifies Landlord from and agrees to hold
harmless Landlord against, any and all liability, loss, cost, damage or expense,
including, without limitation, court costs and reasonable, actual attorney's
fees, incurred or suffered by Landlord arising out of or resulting from (i) any
gross negligence of willful misconduct of Tenant or Tenant's Agents acting
within the scope of their respective agency or employment, except to the extent
resulting from the negligence or willful misconduct of Landlord or Landlord's
Agents, or (ii) any damage to property or injury or death to any person in the
Demised Premises regardless of cause (unless caused by the negligence or willful
misconduct of Landlord or Landlord's Agents).
(b) Subject to the provisions of Articles 17, 18 and 41 of
this Lease, and subparagraph (e) of EXHIBIT "E", Landlord hereby
indemnifies Tenant from, and agrees to hold Tenant harmless against,
any and all liability, loss, cost, damage or expense, including,
without limitation, court costs and reasonable attorney's fees,
incurred or suffered by Tenant arising out of or resulting from the
gross negligence or willful misconduct of Landlord, or any of
Landlord's employees or agents acting within the scope of their
respective agency or employment, but excepting those resulting from the
negligence or willful misconduct of Tenant, or Tenant's Agents.
(c) The provisions of this Article 37 shall survive any
termination of this Lease.
38. RELOCATION OF THE PREMISES. Intentionally Deleted.
39. ABANDONMENT OF THE PREMISES. The abandonment or vacation of the
Demised Premises shall not be an event of default by Tenant under this Lease,
but in the event Tenant shall abandon or vacate the Demised Premises, unless due
to a casualty, condemnation or remodeling (which remodeling is being diligently
prosecuted), Landlord may, at any time while such abandonment or vacation of the
Demised Premises has existed for a period of in excess of ninety (90) days,
notify Tenant of Landlord's election to terminate this Lease, in which event
this Lease shall terminate on the date so selected by Landlord in Landlord's
written election to terminate this Lease, and on the date so set forth in
Landlord's written election, this Lease shall terminate and come to an end as
though the date selected by Landlord were the last day of the natural expiration
of the Lease Term; provided, however, that no such termination shall affect or
limit any obligations or liabilities of Tenant arising or accruing under this
Lease prior to the
-41-
effective date of any such termination; and provided further that Tenant may
rescind Landlord's election by (i) notifying Landlord in writing, within ten
(10) days after receipt of Landlord's written election to terminate this Lease,
that Tenant will reoccupy the Demised Premises for business purposes and (ii) in
fact, so reoccupying the Demised Premises for business purposes within sixty
(60) days thereafter.
40. FORCE MAJEURE. In the event of strike, lockout, labor trouble,
civil commotion, Act of God, or any other cause beyond a party's control
(collectively "force majeure") resulting in the Landlord's inability to supply
the services or perform the other obligations required of Landlord hereunder,
this Lease shall not terminate and Tenant's obligation to pay Rent and all other
charges and sums due and payable by Tenant shall not be affected or excused and
Landlord shall not be considered to be in default under this Lease. If, as a
result of force majeure, Tenant is delayed in performing any of its obligations
under this Lease, other than Tenant's obligation to take possession of the
Demised Premises on or before the Rental Commencement Date and to pay Rent and
all other charges and sums payable by Tenant hereunder, Tenant's performance
shall be excused for a period equal to such delay and Tenant shall not during
such period be considered to be in default under this Lease with respect to the
obligation, performance of which has thus been delayed.
41. LANDLORD'S LIABILITY. Landlord shall have no personal liability
with respect to any of the provisions of this Lease. If Landlord is in default
with respect to its obligations under this Lease, Tenant shall look solely to
Landlord's interest in and to the Project for satisfaction of Tenant's remedies,
if any. For purposes hereof, Landlord's interest in the Project shall mean (a)
Landlord's ownership interest in the Project, (b) all of Landlord's interest in
all condemnation awards and insurance proceeds pertaining to the Project, and
(c) all rents and profits derived from the ownership and/or sale of the Project
(or any portion thereof), after the date of any notice of default from Tenant to
Landlord which is not subsequently cured. It is expressly understood and agreed
that Landlord's liability under the terms of this Lease shall in no event exceed
the amount of its interest in and to the Project. In no event shall any partner
of Landlord nor any member or joint venturer in Landlord, nor any officer,
director or shareholder of Landlord or any such partner, member or joint
venturer of Landlord be personally liable with respect to any of the provisions
of this Lease.
42. LANDLORD'S COVENANT OF QUIET ENJOYMENT. Provided Tenant performs
the terms, conditions and covenants of this Lease within any applicable notice
and cure periods, and subject to the terms and provisions hereof, Landlord
covenants and agrees to take all necessary steps to secure and to maintain for
the benefit of Tenant the quiet and peaceful possession of the Demised Premises,
for the Lease Term, without hindrance, claim or molestation by Landlord or any
other person lawfully claiming by, through or under Landlord.
43. SECURITY DEPOSIT. INTENTIONALLY DELETED.
44. HAZARDOUS SUBSTANCES. (a) Tenant hereby covenants and agrees that
Tenant shall not introduce or permit any of its employees, agents or contractors
to introduce any "Hazardous Substances" (as hereinafter defined) in, on or under
the Project or any part thereof,
-42-
except for Hazardous Substances as are commonly and legally used or stored as a
consequence of using the Demised Premises for general office and administrative
purposes, but only so long as the quantities thereof do not pose a threat to
public health or to the environment or would necessitate a "response action", as
that term is defined in CERCLA (as hereinafter defined), and so long as Tenant
strictly complies or causes compliance with all applicable governmental rules
and regulations concerning the use, storage, production, transportation and
disposal of such Hazardous Substances. Promptly upon receipt of Landlord's
request, Tenant shall submit to Landlord true and correct copies of any reports
filed by Tenant with any governmental or quasi-governmental authority regarding
the generation, placement, storage, use, treatment or disposal of Hazardous
Substances on or about the Demised Premises. Tenant also agrees to cooperate
with Landlord and to provide access by Landlord and Landlord's representatives
to any Tenant's records with respect to the Demised Premises relating to any
assessment of the environmental condition of the Demised Premises and the
generation, placement, storage, use, treatment or disposal of Hazardous
Substances on or about the Demised Premises. For purposes of this Article 44,
"Hazardous Substances" shall mean and include those elements or compounds which
are contained in the list of Hazardous Substances adopted by the United States
Environmental Protection Agency (EPA) or in any list of toxic pollutants
designated by Congress or the EPA or which are defined as hazardous, toxic,
pollutant, infectious or radioactive by any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability (including, without limitation, strict
liability) or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereinafter in effect
(collectively "Environmental Laws"). Tenant hereby agrees to indemnify Landlord
and hold Landlord harmless from and against any and all losses, liabilities,
including strict liability, damages, injuries, expenses, including reasonable
attorneys' fees, costs of settlement or judgment and claims of any and every
kind whatsoever paid, incurred or suffered by, or asserted against, Landlord by
any person, entity or governmental agency for, with respect to, or as a direct
or indirect result of, the introduction by Tenant or Tenant's employees, agents
or contractors of any Hazardous Substances in, on or under the Project
(including, without limitation, any losses, liabilities, including strict
liability, damages, injuries, expenses, including reasonable attorneys' fees,
costs of any settlement or judgment or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act ["CERCLA"],
any so-called federal, state or local "Superfund" or "Superlien" laws or any
other Environmental Law); provided, however, that the foregoing indemnity is
limited to matters arising solely from Tenant's violation of the covenant
contained in this Article. The obligations of Tenant under this Article shall
survive any expiration or termination of this Lease.
(b) Landlord does hereby represent and warrant to Tenant that, to the
best of Landlord's actual knowledge, neither the Land nor the existing
improvements thereon contain any Hazardous Substances as of the date of this
Lease except for Hazardous Substances as are commonly and legally used or stored
as a consequence of maintaining and operating improvements of the nature
currently located on the Land or as exist in legally compliant DE MINIMUS
amounts in the Land's natural condition; provided, however, sampling performed
by Landlord has indicated the presence of certain gasoline constituents in soil
and groundwater on the Land, as set forth in a Report of Environmental
Consulting Services by MACTEC Environmental and Consulting Services, dated
October 7, 2004. Based on MACTEC's
-43-
investigation, the primary source of such gasoline constituents appears to be a
former gas station, located across Piedmont Road from the Land. This gas station
is closed, and received a "no further action letter" from the Georgia
Environmental Protection Division ("EPD") in April 2000. Written notification of
the detection was provided to EPD on November 30, 2004. In response EPD issued a
letter, dated January 13, 2005, stating that it has no reason to believe a
release exceeding a reportable quantity has occurred on the Land, and that the
Land theretofore will not be listed on the Hazardous Site Inventory. To the
extent further action on such matter is required, the cost of such further
action shall not be included in Operating Expenses under this Lease Landlord
further hereby covenants and agrees that Landlord and its employees shall not
generate, place, hold, store, use, treat or dispose of, nor will Landlord allow
or permit the generation, placement, storage, use, treatment or disposal by
Landlord's agents or contractors (acting within the scope of their agency or
contract) of, any Hazardous Substances at the Project or any part thereof during
the Lease Term except for Hazardous Substances customary for office buildings
and then only in compliance with Environmental Laws. In the event Landlord is
required under any Environmental Laws to remove or remediate any Hazardous
Substances at the Project, Landlord shall comply (or cause compliance) with such
requirement. Subject to Article 37 hereof, Landlord hereby agrees to indemnify
Tenant and hold Tenant harmless from and against any and all losses,
liabilities, including strict liability, damages, injuries, expenses, including
reasonable attorney's fees, costs of settlement or judgment and claims of any
and every kind whatsoever paid, incurred or suffered by, or asserted against,
Tenant by any Person for, with respect to, or as a direct or indirect result of,
the generation, placement, storage, use, treatment or disposal of Hazardous
Substances at the Project by Landlord or its employees, or by Landlord's agents
or contractors acting within the scope of their agency or contract.
45. SUBMISSION OF LEASE. The submission of this Lease for examination
does not constitute an offer to lease and this Lease shall be effective only
upon execution hereof by Landlord and Tenant.
46. SEVERABILITY. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws, the remainder of this
Lease shall not be affected thereby, and in lieu of each clause or provision of
this Lease which is illegal, invalid or unenforceable, there shall be added as a
part of this Lease a clause or provision as nearly identical to the said clause
or provision as may be legal, valid and enforceable.
47. ENTIRE AGREEMENT. This Lease contains the entire agreement of the
parties and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied herein shall be of any force or
effect. No failure of Landlord to exercise any power given Landlord hereunder,
or to insist upon strict compliance by Tenant with any obligation of Tenant
hereunder, and no custom or practice of the parties at variance with the terms
hereof, shall constitute a waiver of Landlord's right to demand exact compliance
with the terms hereof. This Lease may not be altered, waived, amended or
extended except by an instrument in writing signed by Landlord and Tenant. This
Lease is not in recordable form, and Tenant agrees not to record or cause to be
recorded this Lease or any short form or memorandum thereof.
-44-
48. HEADINGS. The use of headings herein is solely for the convenience
of indexing the various paragraphs hereof and shall in no event be considered in
construing or interpreting any provision of this Lease.
49. BROKER. CW has represented Tenant in this transaction and CPI and
CB have represented Landlord in this transaction. Broker(s) (as defined in
Article 1[q]) (are) entitled to a leasing commission from Landlord by virtue of
this Lease, which leasing commission shall be paid by Landlord to Broker(s) in
accordance with the terms of a separate agreement between Landlord and
Broker(s). Tenant hereby authorizes Broker(s) and Landlord to identify Tenant as
a tenant of the Building and to state the amount of space leased by Tenant in
advertisements and promotional materials relating to the Building. Tenant
represents and warrants to Landlord that (except with respect to any Broker[s]
identified in Article 1[o] hereinabove) no broker, agent, commission
salesperson, or other person has represented Tenant in the negotiations for and
procurement of this Lease and of the Demised Premises and that (except with
respect to any Broker[s] identified in Article 1[q] hereinabove) no commissions,
fees, or compensation of any kind are due and payable in connection herewith to
any broker, agent, commission salesperson, or other person as a result of any
act or agreement of Tenant. Tenant agrees to indemnify and hold Landlord
harmless from all loss, liability, damage, claim, judgment, cost or expense
(including reasonable attorneys' fees and court costs) suffered or incurred by
Landlord as a result of a breach by Tenant of the representation and warranty
contained in the immediately preceding sentence or as a result of Tenant's
failure to pay commissions, fees, or compensation due to any broker who
represented Tenant, whether or not disclosed, or as a result of any claim for
any fee, commission or similar compensation with respect to this Lease made by
any broker, agent or finder (other than the Broker[s] identified in Article 1[q]
hereinabove) claiming to have dealt with Tenant, whether or not such claim is
meritorious. At Landlord's request, Tenant shall cause any agent or broker
representing Tenant to execute a lien waiver to and for the benefit of Landlord,
waiving any and all lien rights with respect to the Building and Land which such
agent or broker has or might have under Georgia law.
50. GOVERNING LAW. The laws of the State of Georgia shall govern the
validity, performance and enforcement of this Lease.
51. SPECIAL STIPULATIONS. The special stipulations attached hereto as
EXHIBIT "H" are hereby incorporated herein by this reference as though fully set
forth.
52. AUTHORITY. If Tenant executes this Lease as a corporation, each of
the persons executing this Lease on behalf of Tenant does hereby personally
represent and warrant that Tenant is a duly incorporated or a duly qualified (if
a foreign corporation) corporation and is fully authorized and qualified to do
business in the State in which the Demised Premises are located, that the
corporation has full right and authority to enter into this Lease, and that each
person signing on behalf of the corporation is an officer of the corporation and
is authorized to sign on behalf of the corporation. If Tenant signs as a
partnership, joint venture, limited liability company or sole proprietorship or
other business entity (each being herein called "Entity"), each of the persons
executing on behalf of Tenant does hereby covenant and warrant that Tenant is a
duly authorized and existing Entity, that Tenant has full right and authority to
enter into this
-45-
Lease, that all persons executing this Lease on behalf of the Entity are
authorized to do so on behalf of the Entity, and that such execution is fully
binding upon the Entity and its partners, joint venturers, or principal, as the
case may be. Upon the request of Landlord, Tenant shall deliver to Landlord
documentation satisfactory to Landlord evidencing Tenant's compliance with this
Article, and Tenant agrees to promptly execute all necessary and reasonable
applications or documents as reasonably requested by Landlord, required by the
jurisdiction in which the Demised Premises is located, to permit the issuance of
necessary permits and certificates for Tenant's use and occupancy of the Demised
Premises.
53. FINANCIAL STATEMENTS. Upon Landlord's written request therefor, but
not more often than once per year, and only if such information is not otherwise
available in the public domain through other sources, Tenant shall promptly
furnish to Landlord a financial statement with respect to Tenant for its most
recent fiscal year prepared in accordance with generally accepted accounting
principles and certified to be true and correct by Tenant, which statement
Landlord agrees to keep confidential and not use except in connection with
proposed sale or loan transactions.
54. JOINT AND SEVERAL LIABILITY. If Tenant comprises more than one
person, corporation, partnership or other entity, the liability hereunder of all
such persons, corporations, partnerships or other entities shall be joint and
several.
55. PARKING.
(a) PARKING PERMITS. (i) There will be parking provided for
Tenant and other users of the Project in a parking garage adjacent to
the Building, in parking areas underneath the Building, and in certain
surface parking lots on the Project (collectively, the "Building
Parking Facilities"). Landlord shall offer and make available to Tenant
as of the Rental Commencement Date, and Tenant shall accept and pay
for, a total of sixty-eight (68) access cards or parking permits
("Parking Permits") for the "Tenant Parking" area of the Building
Parking Facilities (which will be located in whole or in part in the
separate free-standing parking deck) as follows:
Six (6) of such Parking Permits provided to Tenant
shall entitle each holder thereof to park in an assigned,
numbered parking space in the parking deck located on the Land
(and of such 6 Parking Permits, 2 shall be for the executive
parking area for the Building, as designated by Landlord). The
initial fee for such Parking Permits shall be One Hundred
Twenty-Five and No/100 Dollars ($125.00) per Parking Permit
per month, and such fee shall be subject to increase, as
provided below.
The remainder of such Parking Permits provided to
Tenant (initially 62) shall entitle each holder thereof to
park in an unassigned parking space in the "Tenant Parking"
area in the parking deck, and the initial fee for such Parking
Permits shall be Ninety Five and No/100 Dollars ($95.00) per
Parking Permit per month, and such fee shall be subject to
increase, as provided below.
-46-
(ii) Every three (3) years during the Lease Term, starting
with the third (3rd) anniversary of the Rental Commencement Date,
Tenant shall designate by a notice to Landlord the number of Parking
Permits Tenant desires to be issued by Landlord and pay for (for both
the area with assigned, number parking spaces and the area with
unreserved parking spaces), and which Landlord shall make available and
provide to Tenant, for the next three (3) years of the Lease Term, such
number designated by Tenant to be any number be any number between 0
and the number of Parking Permits expressly set forth in Article
55(a)(i) above.
(iii) Tenant agrees to pay to Landlord the parking fees for
all such Parking Permits on a monthly basis, together with each monthly
installment of Base Rental, commencing on the Rental Commencement Date
and thereafter throughout the Lease Term. The rates for all Parking
Permits shall increase as of January 1, 2009, and as of the first day
of each succeeding calendar year, at the rate of three percent (3%) per
year on a compounded basis; provided, however, that every three (3)
years, starting with calendar year 2012, the cost due from Tenant for
the Parking Permits shall be adjusted to the "Market Parking Rate", as
described in Article 55(e) herein. Tenant shall have the right to
assign any of its Parking Permits only to any permitted assignees or
sublessees under this Lease.
(b) CARD FEES. Landlord may establish and require payment of a
reasonable fee for the issuance of replacement permits or cards.
(c) CONDEMNATION OR CASUALTY AFFECTING PARKING. If the number
of parking spaces available in the Project's parking facilities is
reduced, either temporarily or permanently, as a result of a casualty
or taking by condemnation, Landlord shall have the right to effect a
proportionate reduction in the number of Parking Permits provided to
Tenant, but only so long as such parking spaces are unavailable as a
result of the applicable casualty or taking, and Tenant shall not be
obligated to pay fees for any Parking Permits not provided to Tenant
during such periods.
(d) RELINQUISHMENT OF PARKING PERMITS. In addition to the
rights of Tenant to relinquish Parking Permits under Article 55(a)(ii)
above, Tenant may at any time on sixty (60) days prior written notice
to Landlord relinquish its rights to all or any portion of the Parking
Permits allocated to it; provided, however, in no event shall Tenant
have the right to reinstate any Parking Permits relinquished by Tenant,
and if Tenant thereafter desires to increase the number of Parking
Permits allocated to it, Tenant may do so only if available and at such
then available rates and terms (which Tenant acknowledges and agrees
may be for a month-to-month term or less).
(e) MARKET PARKING RATE. The Market Parking Rate shall be, for
Parking Permits in both reserved and un-reserved parking areas, the
average monthly rate for such parking spaces charged in the parking
decks at those certain buildings located in the Buckhead, Area,
Atlanta, Georgia sub-market, and known as "Monarch I" and "Monarch II";
-47-
"Alliance Center"; "Prominence"; and the "Pinnacle". If any of such
buildings is no longer used and operated as first-class, multi-tenant
office building, then Landlord and Tenant shall, in their respective
reasonable judgment, agree upon a substitute building and parking
facility in the Buckhead Area, Atlanta, Georgia sub-market for such
building.
56. EXTENSION OPTION.
56.1 EXERCISE. Tenant shall have the option to extend the Lease
Term for the Demised Premises for two (2) extended terms of five (5) years each
(individually or collectively, as the context suggests, an "Extended Term").
Such option shall be exercised by irrevocable written notice to Landlord given
not less than fifteen (15) months prior to the expiration of the initial Lease
Term. The Extended Term shall be upon the same covenants, agreements, terms and
conditions that are contained herein for the initial Lease Term, as the same
shall then be in effect hereunder, except as expressly provided herein to the
contrary. Tenant may not exercise an option to extend the Lease Term for the
Extended Term if any Event of Default by Tenant under this Lease has occurred
and is continuing. Landlord and Tenant shall begin to negotiate the amount of
Market Base Rental Rate promptly following Tenant's notice.
56.2 BASE RENTAL DURING EXTENDED TERMS. As of the commencement of
the Extended Term, the Base Rental rate for the Demised Premises shall be
adjusted to the prevailing Market Base Rental Rate (hereinafter defined) as of
the commencement of the Extended Term. Tenant shall continue to pay Tenant's
Forecast Additional Rental and Tenant's Additional Rental as provided in Article
8 hereof.
56.3 MARKET BASE RENTAL RATE DEFINED. Whenever used in this Lease,
the term "Market Base Rental Rate" as of any date shall mean the annual net
(excluding that portion of the rate associated with operating expenses) rental
rate per square foot of net rentable area which a willing landlord under no
compulsion would agree to accept as of such date from a tenant having the
creditworthiness of Tenant, and such a willing tenant under no compulsion would
agree to pay as of such date, under new leases (based on the projected Term) of
space in comparable office buildings located in the Buckhead area of Atlanta,
Georgia comparable to the space for which the Market Base Rental Rate is being
determined and on a comparable basis (taking into consideration use, location
and/or floor level within the applicable building, definition of rentable floor
area, leasehold improvements provided, remodeling credits or allowances granted,
quality, age and location of the applicable building, rental concessions [such
as abatements, free rent or lease assumptions], the time the particular rate
under consideration became effective, size of tenant, relative operating
expenses, relative services provided, etc.). If Landlord and Tenant are unable
to agree upon the applicable Market Base Rental Rate prior to the date which is
twelve (12) months before the commencement of the Extended Term, either party
may demand arbitration as hereinafter provided:
(i) All proceedings shall be conducted according to the Rules
of the American Arbitration Association except as hereinafter
provided. No action at law or equity in connection with any such
disputes shall be brought until arbitration hereunder shall have
been waived, either expressly or pursuant to this Article.
-48-
(ii) All disputes subject to arbitration in accordance with
this Article shall be raised by notice to the other party hereto.
If one of the parties properly demands arbitration, then the
agreement to arbitrate as herein set forth shall be mandatory, and
each party shall deliver to the other, within ten (10) days after
the date of demand, that party's determination of the Market Base
Rental Rate then in question, which amount shall be used by the
arbitrator pursuant to subparagraph (v) below to determine the
Market Base Rental Rate.
(iii) Tenant and Landlord shall mutually and promptly select a
person who has had not less than ten (10) years' experience in the
Metropolitan Atlanta, Georgia area in commercial office leasing
matters, to act as arbitrator hereunder. If a selection is not made
within thirty (30) days after a demand for arbitration is made, the
arbitrator shall, upon the request of either party, be appointed by
the American Arbitration Association. The arbitration proceedings
shall take place at a mutually acceptable location in the City of
Atlanta, Georgia.
(iv) In determining any controversy or dispute the arbitrator
shall apply the pertinent provisions of this Lease without
departure therefrom in any respect. The arbitrator shall not have
the power to add to, modify or change any of the provisions of this
Lease, but this provision shall not prevent in any appropriate case
the interpretation, construction and determination by the
arbitrator of the applicable provisions of this Lease to the extent
necessary in applying the same to the matters to be determined by
arbitration.
(v) Subject to subparagraph (a) above, the arbitrator shall
determine which of the Market Base Rental Rates proposed by
Landlord and Tenant is closest to the Market Base Rental Rate as
determined by the arbitrator, and such Market Base Rental Rate
chosen by Landlord or Tenant, which is closest to the rate
determined by the arbitrator, shall be deemed to be the Market Base
Rental Rate hereunder. The decision of the arbitrator shall be
final and binding upon the parties hereto.
(vi) During any arbitration proceedings pursuant to this
Article, the parties hereto shall continue to perform and discharge
all their respective obligations under this Lease. If the decision
of the arbitrator has not been made prior to the commencement of
the Extended Term, the Base Rental to be paid by Tenant for the
portion of the Extended Term prior to the arbitrator's decision
shall be calculated at the lower of the two rates submitted to the
arbitrator in accordance with subparagraph (ii) above. If the Base
Rental rate for the Extended Term shall increase above the lower of
said two rates as a result of such arbitration, such increase shall
be deemed to be effective as of the first day of the Extended Term,
and Tenant shall promptly pay to Landlord all additional Base
Rental resulting from such adjustment, together with interest on
such additional Base Rental from the respective dates same would
have been due and payable until paid, at the rate of interest
announced from time to time by Bank of America, N.A. or any
successor thereof, as the "prime rate".
-49-
56.4 NO EXTENSION BY SUBTENANT. Tenant shall not have the right to
assign its extension rights to any sublessee of the Demised Premises, nor may
any such sublessee exercise such extension rights, but Tenant may assign its
extension rights to a permitted assignee, if any, of all of Tenant's rights
under this Lease.
56.5 CONDITION OF LEASEHOLD IMPROVEMENTS. The leasehold
improvements will be provided in their then existing condition (on an "as is"
basis) at the time the Extended Term commences.
57. RENT ABATEMENT FOR CESSATION OF ESSENTIAL BUILDING SERVICES. If any
essential building service (i.e. only water, electricity, sewer, elevator
service, HVAC or emergency life safety systems) are either interrupted or not
provided to the level of required Building Standard Services for a period of
five (5) consecutive Business Days (other than because of the negligent or
intentional act or neglect of Tenant, its agents, contractors, partners or
employees or failure of a public utility) and if Tenant is unable (based upon
reasonable commercial standards) to operate its business in the Demised
Premises, or any portion thereof, as a result of the interruption in or
deficient level of such essential building service, there shall be an abatement
of Base Rental and Tenant's Additional Rental in proportion that the Demised
Premises are unusable after said fifth (5th) Business Day until such services
are restored. If such essential building services are interrupted or not
provided to the level of required Building Standard Services due to failure of a
public utility, there shall be an abatement of Base Rental and Tenant's
Additional Rental only if Landlord's rent loss insurance shall provide benefits
for the particular failure of the public utility and only for the period of
coverage of such rent loss insurance. Landlord will agree to use its best
efforts to restore such services as soon as possible. If Landlord is not able to
restore such service described above within one hundred eighty (180) days after
the service is first interrupted, other than in connection with a Casualty,
Tenant may send notice (the "Additional Cure Period Notice") that if such
services are not restored within thirty (30) days after the date of such notice
(the "Additional Cure Period"), then Tenant shall have the right to terminate
this Lease at any time after the Additional Cure Period. The Additional Cure
Period Notice shall be sent by Tenant to either (i) Landlord, if Tenant has not
entered into a non-disturbance agreement with a mortgagee that currently holds a
mortgage on the Project or (ii) Landlord and mortgagee, if Tenant has entered
into a non-disturbance agreement with a mortgagee that currently holds a
Mortgage on the Project. If such services are not restored by the end of the
Additional Cure Period, then Tenant shall have the right to terminate this Lease
by giving written notice to Landlord (and such mortgagee, if applicable)
provided such services have not be restored before the date of such notice, and
such notice of termination from Tenant shall set forth the date this Lease shall
terminate, which date shall not be more than two hundred ten (210) days after
the date of notice, in which event this Lease shall terminate as of the date of
termination as set forth in such notice as though the date set forth in such
notice were the last date of the natural expiration of the Lease Term.
-50-
58. TENANT'S SELF-HELP REMEDY. If Landlord fails to perform any
agreement or obligation on its part to be performed under this Lease, Tenant
shall have the right (a) if no emergency exists (a condition which creates a
risk of imminent danger to persons or substantial damage to property), to
perform the same after giving thirty (30) days' notice to Landlord and to any
party entitled to receive notices hereunder, provided Landlord shall not
commence to cure such default within such thirty (30) day period and thereafter
proceed with due diligence to do so; and (b) in any emergency situation, to
perform the same immediately without notice or delay. Tenant agrees that if
Tenant is entitled and elects to rectify any default as aforesaid, Tenant shall
effect such cure in a reasonable manner and so as not to interfere unreasonably
with the rights of third parties, including other tenants. Landlord shall
reimburse Tenant for the reasonable costs and expenses incurred by Tenant in
rectifying defaults as aforesaid. Tenant shall provide Landlord with copies of
the invoices or other written evidence of the costs incurred by Tenant for which
Tenant claims reimbursement. Any act done by Tenant pursuant to this Article
shall not constitute a waiver by Tenant of any such default by Landlord or a
waiver of any covenant, term or condition herein contained or the performance
thereof. If (i) Tenant obtains a final judgment by a court of competent
jurisdiction against Landlord on account of any breach by Landlord of any
covenant or obligation to be performed by Landlord under this Lease and (ii)
Landlord does not pay the amount due Tenant under such final judgment within the
time provided for payment of such judgment or court order, Tenant may, at its
option, upon thirty (30) days' notice to Landlord (with a copy of such notice
being sent to any party entitled to receive notices hereunder) offset such
amount due Tenant against its payment of Rent payable under this Lease to the
extent of such amount due. Any amount so offset shall be subject to recovery by
Landlord in the event Landlord shall prevail in connection with any appeal of
such judgment. Tenant agrees that the cure or rectification by any party
entitled to receive notice hereunder shall be deemed a cure or rectification by
Landlord hereunder.
59. SIGNAGE.
59.1 PROJECT MONUMENT SIGN. Subject to applicable law, Landlord
shall install a monument sign for the Project in a location designated by
Landlord in its reasonable discretion. Landlord represents and warrants that
Landlord currently has all appropriate permits and authorizations to construct
and place such monument sign from the applicable governmental authorities. The
cost of maintaining, repairing and replacing such monument sign for the Project
(but not the cost of constructing such monument sign) shall be included in
Operating Expenses under this Lease. For so long as Tenant and/or any Affiliate
of Tenant leases at least two (2) floors in the Building and occupies at least
the number of square feet of Rentable Floor Area in the Building equal to fifty
percent (50%) of the Rentable Floor Area of the initial Demised Premises leased
under this Lease, Tenant shall have the right, at Tenant's cost, to place
Tenant's graphics identifying the name of Tenant and Tenant's logo on a panel to
be placed on such monument sign. The design and color of Tenant's sign panel and
graphics for such monument sign and the method of attachment thereto shall be
subject to the prior written approval of Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed. The size of Tenant's sign panel
on the monument sign for the Project shall be consistent with the design
specifications of such monument sign. There shall be multiple panels on the
monument sign, and the sign panels and graphics on the monument sign shall be of
equal size. Landlord shall
-51-
respond to any such request for approval of Tenant's sign panel and graphics,
stating the reasons for any disapproval, within fifteen (15) days after receipt
by Landlord of Tenant's plans for such sign panel and graphics, and if Landlord
fails to respond within such fifteen (15) day period, Landlord will be deemed to
have approved such plans. Landlord may withhold approval of such sign panel and
graphics if the proposed method of attachment is such as would cause damage to
or defacement of the monument sign upon removal of such sign panel and graphics,
normal wear and tear excepted. If Tenant and/or any Affiliate of Tenant shall
cease to lease at least two (2) floors in the Building, or to occupy at least
the number of square feet of Rentable Floor Area in the Building equal to fifty
percent (50%) of the Rentable Floor Area of the initial Demised Premises leased
under this Lease, Landlord can elect to cause Tenant to remove its graphics from
such monument sign. If the removal of Tenant's sign panel and graphics from such
monument sign causes damage or defacement of such monument sign, Tenant shall be
responsible for the reasonable cost of repair of such monument sign, normal wear
and tear excepted. Such obligation shall survive any expiration or termination
of this Lease.
59.2 INTERIOR SIGNS. On any floor of the Building completely leased
by Tenant, Tenant shall, at its sole cost and expense, be permitted to install
any signage (including signage on the walls of any elevator lobbies on floors on
which Tenant occupies all of the square feet of Rentable Floor Area), provided
that such signage complies with all Legal Requirements and is not visible from
the exterior of the Building. With respect to any floor of the Building on which
Tenant leases some, but not all, of the Rentable Floor Area on such floor,
Landlord may elect for Tenant's sign(s) at its entrance(s) on such floor to be
consistent with the Building Standard signs for partial floor tenants.
60. DELIVERY DATE, SUBSTANTIAL COMPLETION AND RIGHTS OF TENANT. (a)
Landlord agrees to keep Tenant advised of the progress of the construction
obligations of Landlord under this Lease so the parties can determine as soon as
possible whether the Demised Premises Delivery Date will be delayed beyond June
1, 2007. Landlord agrees to provide Tenant and its representatives and
contractors with access to the construction site, the Building and the Demised
Premises (subject to compliance with reasonable construction safety
requirements) and to Landlord's employees and general contractor for purposes of
determining the progress of construction.
(b) If the Demised Premises Delivery Date does not occur on or before
September 1, 2007 Landlord shall be liable for and shall reimburse Tenant for
all Holdover Costs. For purposes of this Article, "Holdover Costs" shall mean
(i) any monthly holdover rent during any holdover or agreement of holdover
payable by Tenant with respect to the space leased by Tenant at Suite 700 of the
Lenox Building, at 0000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 (the "Existing
Space") in excess of the monthly gross rental for the Existing Space under that
certain lease by and between Tenant and Property Georgia OBJLW Two Corporation,
dated March 3, 1997 (the " Existing Lease"), on October 31, 2007; (ii) monthly
gross rent payable by Tenant for all temporary leased premises during the term
of all leases of such temporary space in excess of the monthly rental payable by
Tenant under the Existing Lease, on October 31, 2007; (iii) reasonable moving
expenses, communications installation expenses (such as phones, satellite
cabling and computer wiring) together with any reasonable tenant improvement
costs, if
-52-
applicable, incurred in moving from the Existing Space to all temporary premises
so as to place all temporary premises in a condition providing the reasonable
requirements for Tenant's use; (iv) reasonable storage costs incurred by Tenant
in temporarily storing items of personal property prior to the occurrence of the
Rent Commencement Date; (v) printing and disbursement of announcements with
respect to all temporary relocations, telephone switching costs, and broker's
fees in connection with the lease of all temporary premises; and (vi) rental
payments as provided in the last sentence of subparagraph (e) below. Any amounts
payable hereunder by Landlord to Tenant shall be paid within twenty (20) days of
demand and if such are not timely paid shall bear interest at the rate specified
in Article 11 hereof. Holdover Costs shall expressly exclude any consequential,
exemplary or punitive damages suffered or incurred by Tenant as a result of any
holdover by Tenant in the Existing Space beyond the term provided in the
Existing Lease or any lease of temporary premises.
(c) As soon as Tenant reasonably determines that the Demised Premises
Delivery Date will not occur by September 1, 2007 (taking into account any
program of overtime labor instituted by Landlord) and therefore Tenant will
require office space to be occupied beyond October 31, 2007, Tenant agrees to
notify Landlord of such determination and, subject to Tenant's ultimate right to
determine its course of action, to consult with Landlord concerning Tenant's
efforts to obtain an extension of the Existing Lease or to obtain temporary
space in the Buckhead area of Atlanta, Georgia, or if none is available, in the
Midtown area of Atlanta, Georgia, or if none is available, in other areas of
metropolitan Atlanta, Georgia acceptable to Tenant in its discretion. Tenant
agrees to use good faith efforts to obtain the right to holdover under the
Existing Lease under commercially reasonable terms under the circumstances then
existing and the parties acknowledge that it is Tenant's preference as well as
being commercially appropriate that Tenant remain in the Existing Space if the
Demised Premises Delivery Date will not occur on or before September 1, 2007. If
Tenant determines that it can not holdover in the Existing Space, Tenant shall
use good faith efforts to negotiate for temporary space on commercially
reasonable terms under the circumstances then existing. Landlord acknowledges
that there may need to be multiple temporary premises and there may be multiple
moves to temporary premises from time to time depending upon how long space is
available and when the Rent Commencement Date is anticipated to occur; provided,
however, Landlord acknowledges that Tenant needs to minimize the number of moves
and the number of temporary premises to minimize disruptions to its normal
business operations and that it is Tenant's preference for all temporary space
to be in Buckhead or locations as close as possible, providing appropriately
furnished space in appropriate class buildings. At the time any such requirement
to holdover may occur, Tenant agrees that it shall show why amounts for the
Existing Space were commercially reasonable, taking into account the amount of
square footage in the Existing Space, the need for continuity of normal business
operations, the time between the point in time when Tenant makes its
determination that it must holdover or find temporary space and October 31,
2007, as well as the availability of contiguous space, appropriately finished as
provided above, in the Buckhead area and the rental rate for such temporary
space.
(d) Tenant agrees to advise Landlord of the action it proposes to take
with respect to each holdover or moves to temporary space, specifying the action
to be taken (whether holdover in the Existing Space or movement to temporary
space), length of lease terms, rental rates,
-53-
"ballpark" anticipated cost to move, and "ballpark" other anticipated Holdover
Costs. Landlord shall have five (5) Business Days within which to provide
approval of or written objections to Tenant's proposed actions, specifying the
reasons therefor and in the event Landlord fails to timely do so, Landlord shall
be deemed to have agreed to the proposed actions of Tenant and "ballpark" costs
associated therewith. If Landlord objects, Tenant, in its sole discretion, shall
have the right to proceed as follows:
(1) Tenant shall have the right to take the proposed actions
and at the same time refer the matter to arbitration as provided in (2)
below; or
(2) Tenant shall have the right to notify Landlord of its
choice of an arbitrator in which case Landlord shall then have two (2)
Business Days within which to designate its arbitrator, failing which
the Tenant's arbitrator shall be the arbitrator for purposes of this
Article. If Landlord timely designates its arbitrator, then the two
arbitrators shall choose a third arbitrator within three (3) Business
Days thereafter, failing which the third arbitrator shall be appointed
by the Chief Judge of the Superior Court of Xxxxxx County, Georgia upon
petition therefor by either party. Each arbitrator shall be independent
of Landlord and Tenant and shall be a commercial real estate broker
with at least ten (10) years' experience in commercial office leasing
in the Atlanta metropolitan area. The arbitrator(s) shall designate
their own rules concerning hearings and evidence and conduct such
hearings and take such evidence as soon as possible and render their
judgment as soon as possible. The cost and expense of such arbitration
shall be borne by the losing party, which determination shall be made
by the arbitrator(s). If, however, in order to be enforceable in the
courts in the State of Georgia, the arbitrator(s) are required to adopt
any particular rules or procedures, such rules and procedures shall be
binding upon them and the arbitration proceeding shall be conducted in
accordance therewith. The arbitrator's decision shall be final and
binding on Landlord and Tenant. The sole issue for the arbitrator(s)
shall be whether the terms of the proposed action including rental rate
and other Holdover Costs and length of term as proposed by Tenant are
commercially reasonable taking into account the factors provided above,
and, if the arbitrator(s) determines that the proposed action is not
commercially reasonable, he or she (or they) shall determine the
"excess" portion, which "excess" portion shall be excluded from the
determination of Holdover Costs; PROVIDED, HOWEVER, any amount of
holdover rent with respect to the Existing Space equal to or less than
the Approved Rate shall not be subject to arbitration and shall not be
"excess" and the arbitrator(s) shall consider such factors only as of
the time Tenant took the proposed action. If Tenant chooses this option
(2) first, it may then elect to proceed or not to proceed with the
proposed action or pursue other alternatives and provide notice in
accordance with the provisions hereof.
(e) If Tenant holds over at the Existing Space or leases a temporary
space, subject to the terms and provisions of this Article dealing with the
determination of whether the terms of such holdover or move to temporary space
are commercially reasonable, Landlord shall be liable for the Holdover Costs
during the term of the holdover or leases of temporary space even if such terms
exceeds the actual Rental Commencement Date, but in no event shall Landlord be
liable for Holdover Costs attributable to any holdover or lease of temporary
space beyond April 1, 2008,
-54-
except as expressly provided in subparagraph (f) below. In addition, subject to
the terms and provisions of this Article dealing with the determination of
whether the terms of such holdover or moves to temporary space are commercially
reasonable, Landlord shall be liable for gross rentals payable, and actually
paid, by Tenant for such holdover or temporary space which are attributable to
the period after the Rental Commencement Date, but in no event shall Landlord be
liable for gross rentals for such holdover or temporary space attributable to
the period after April 1, 2008, except as expressly provided in subparagraph (f)
below.
(f) If Landlord determines at any time that the Demised Premises
Delivery Date shall not occur on or before April 1, 2008, Landlord shall have
the right to give written notice to Tenant of such determination and to specify
in such written notice the date that Landlord reasonably anticipates that the
Demised Premises Delivery Date shall occur. Upon receipt of such written notice
from Landlord, Tenant shall have a period of fifteen (15) Business Days within
which to elect, as its sole remedy for Landlord's failure in such event, to
terminate this Lease by delivering written notice of such termination to
Landlord, and upon the termination of this Lease by Tenant under this
subparagraph (f), Landlord and Tenant shall have the same rights and obligations
as though this Lease were terminated by Tenant pursuant to subparagraph (g). If
Tenant does not terminate this Lease within such fifteen (15) Business Day
period, the April 1, 2008 date set forth in subparagraph (e) above shall be
deemed to be changed to the date that Landlord anticipates that the Rental
Commencement Date shall occur as specified in Landlord's notice to Tenant, and
the April 1, 2008 date set forth in subparagraphs (d) and (e) above shall be
deemed to be the date immediately prior to such changed date.
(g) If the Demised Premises Delivery Date has not occurred on or before
April 1, 2008 (as such date may be extended under Article 40 or EXHIBIT "D" of
this Lease), then Tenant shall have fifteen (15) business days to elect to
terminate this Lease by delivering notice of such termination to Landlord, and
upon the termination of this Lease by Tenant under this subparagraph, Landlord
and Tenant shall have the same rights and obligations as though this Lease were
terminated by Tenant pursuant to the paragraph above, and Landlord shall owe to
Tenant, as Landlord's sole obligation and Tenant's sole recourse for such
failure, Fifteen and No/100 Dollars ($15.00) per square foot of Rentable Floor
Area in the Demised Premises. Notwithstanding any other provision in this Lease,
if Tenant elects such remedy, then such termination right of Tenant and the
reimbursement obligation of Landlord described above shall be Tenant's sole and
exclusive remedy for Landlord's failure to timely complete its construction
obligations, Tenant hereby waiving and relinquishing all other rights and
remedies at law or in equity against Landlord for such failure, including,
without limitation any suit for monetary damages. The liability of Landlord for
payment of the reimbursement amounts shall survive the termination of this Lease
under this paragraph. If Tenant does not terminate this Lease within such
fifteen (15) business day period, the Demised Premises Delivery Date set forth
above shall be deemed to be changed to the date that Landlord anticipates that
the Demised Premises Delivery Date shall occur as specified a notice from
Landlord to Tenant, and no further or additional amounts shall be due from
Landlord for such deferred Demised Premises Delivery Date.
-55-
61. PATRIOT ACT. Each party hereto represents and warrants to the other
that such party is not, and is not acting, directly or indirectly, for or on
behalf of, any person or entity named as a "specially designated national and
blocked person" (as defined in Presidential Executive Order 13224) on the most
current list published by the U.S. Treasury Department Office of Foreign Assets
Control, and that such party is not engaged in this transaction, directly or
indirectly, on behalf of, and is not facilitating this transaction, directly or
indirectly, on behalf of, any such person or entity. Each party also represents
and warrants to the other that neither such party nor its constituents or
affiliates are in violation of any laws relating to terrorism or money
laundering, including the aforesaid Executive Order and the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (Public Law 107-56), as amended. Each party
hereby agrees to defend, indemnify and hold harmless the other party from and
against any and all claims, damages, losses, risks, liabilities and expenses
(including reasonable attorneys' fees and costs) arising from or related to any
breach of the foregoing representations and warranties by the indemnifying
party.
-56-
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
as of the day, month and year first above written.
"LANDLORD"
3280 PEACHTREE I LLC,
a Georgia limited liability company
By: Cousins Properties Incorporated,
a Georgia corporation, Member
By: /s/ Xxxx X. XxXxx
---------------------------
Its: Senior Vice President
---------------------------
(CORPORATE SEAL)
"TENANT":
XPEDITE SYSTEMS, LLC, D/B/A PREMIERE
GLOBAL SERVICES
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------
Title: Chief Executive Officer
---------------------------
Attest: /s/ L. Xxxxx Xxxxxx
---------------------------
Name: L. Xxxxx Xxxxxx
---------------------------
Title: Svp - Legal and Secretary
---------------------------
(CORPORATE SEAL)
-57-
