Exhibit 10.104(a)
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXXXX XXXXX GARDEN OFFICES
LEASE AGREEMENT
by and between
SUNTRUST PLAZA ASSOCIATES, LLC,
a Georgia limited liability company
and
INTERLAND, INC.
a Georgia corporation
May 15, 0000
Xxxxxxx, Xxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXXXX XXXXX XXXXXX XXXXXXX
XXXXXXX, XXXXXXX
OFFICE LEASE
BASIC LEASE INFORMATION
Date: May 15, 2000
Landlord: SunTrust Plaza Associates, LLC,
a Georgia limited liability company
Tenant: Interland, Inc., a Georgia corporation
Paragraph 1, Premises: Suite 500
Subparagraph (h) Xxxxx 000
Xxxxxxxxx 0, Xxxxxxxx Xxxx of Premises: 50,863 square feet
of Rentable Area
Subparagraph (j)
Xxxxxxxxx 0, Xxxxxxxx Xxxx of Office Tower: 650,712 square feet
Subparagraph (j) of Rentable Area
Paragraph 1, Tenant's Percentage Share: 7.8165%
Subparagraph (l)
Paragraph 2 Commencement Date: Fifteen (15) days after
Delivery Date
Paragraph 2 Expiration Date: One day prior to the tenth (10th)
anniversary of the Commencement Date
for the initial portion of the Premises
Paragraph 3, Base Rental (per annum per square foot of
Subparagraph (a) Rentable Area of Premises): $16.25 for first Lease Year,
increasing each year thereafter
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by 2.5% of the Base Rental in the
then expiring Lease Year
Paragraph 31 Security Deposit: Beginning of
Lease Year Security Deposit
---------- ----------------
Year 1 $1,695,000
Year 2 $1,483,000
Year 3 $1,186,500
Year 4 $847,500
Year 5 $593,000
Years 6&7 $339,000
Years 8-10 $212,000
Paragraph 33 Tenant's Address
for Notices:
Prior to Commencement Date:
Interland, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: _____________________
Following Commencement Date:
Interland, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: _____________________
Xxxxxxxxx 00 Xxxxxxxx'x Xxxxxxx
for Notices:
SunTrust Plaza Associates, LLC
c/o Portman Management Company
000 Xxxxxxxxx Xxxxxx
Xxxxx XX-000
Xxxxxxx, Xxxxxxx 00000
Attn: Property Manager
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with copy sent to:
SunTrust Plaza Associates, LLC
c/o SunTrust Real Estate Corporation
000 Xxxx Xxxx Xxxxxx
Post Office Box 26665
Richmond, VA 23261-6665
Attn: Xx. Xxxxx X. Xxxxxxxxx
Paragraph 42 Exhibits:
EXHIBIT A - Legal Description
EXHIBIT B - Floor Plan(s)
EXHIBIT C - Initial Improvement of the Premises
EXHIBIT C-1 - Definition of Premises Shell
EXHIBIT D - Rules and Regulations
EXHIBIT E - Additional Provisions
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BASIC LEASE INFORMATION CONTINUED . . .
EXHIBIT F - Memorandum of Commencement of Rental
EXHIBIT G - Technical Specifications
Exhibit C - Initial Improvement of the Premises:
---------
Landlord's Contribution (per square foot of Rentable Area of
Premises): $28.00
Exhibit E -- Design Fee Allowance
---------
$2.00 per square foot of Rentable Area of Premises
The provisions of the Lease identified above in the margin are those provisions
where references to particular Basic Lease Information appear. Each such
reference shall incorporate the applicable Basic Lease Information. In the event
of any conflict between any Basic Lease Information and the Lease, the Lease
shall control.
LANDLORD:
SUNTRUST PLAZA ASSOCIATES, LLC,
a Georgia limited liability company
By: SUNTRUST BANKS, INC.,
as Managing Partner
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Title: First Vice President
[SEAL]
TENANT:
INTERLAND, INC.,
a Georgia corporation
By: /s/ X.X. Xxxxxxxxx
--------------------------------------
Title: Senior Vice President
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[SEAL]
SUNTRUST PLAZA GARDEN OFFICES
ATLANTA, GEORGIA
===============================================================================================
TABLE OF CONTENTS Page
----
1. Definitions...................................................................1
2. Term; Completion of Improvements..............................................5
3. Rental........................................................................6
4. Use...........................................................................8
5. Services......................................................................9
6. Taxes Payable by Tenant......................................................10
7. Alterations..................................................................10
8. Liens........................................................................11
9. Repairs......................................................................11
10. Destruction or Damage........................................................12
11. Insurance....................................................................13
12. Release and Subrogation......................................................13
13. Indemnification..............................................................14
14. Compliance with Legal Requirements...........................................15
15. Assignment and Subletting....................................................15
16. Rules........................................................................17
17. Entry by Landlord............................................................18
18. Events of Default............................................................18
19. Remedies.....................................................................19
20. Landlord's Right to Cure Defaults............................................20
21. Attorney's Fees..............................................................21
22. Landlord's Default...........................................................21
23. Eminent Domain...............................................................22
24. Subordination................................................................22
25. No Merger....................................................................24
26. Sale.........................................................................24
27. Estoppel Certificate.........................................................24
28. No Light, Air or View Easement...............................................24
29. Holding Over.................................................................24
30. Abandonment..................................................................25
31. Security Deposit.............................................................25
32. Waiver.......................................................................26
33. Notices......................................................................26
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34. Complete Agreement...........................................................27
35. Corporate Authority..........................................................27
36. [Intentionally Deleted]......................................................27
37. Personalty of Tenant.........................................................27
38. Quiet Enjoyment..............................................................27
39. Hazardous Substances.........................................................27
40. Force Majeure................................................................28
41. Miscellaneous................................................................29
42. Exhibits; Additional Provisions .............................................29
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SUNTRUST PLAZA GARDEN OFFICES
LEASE
THIS LEASE (hereinafter referred to as the "Lease"), dated as of May 15,
2000 (for the purpose of reference only), is made and entered into by and
between SUNTRUST PLAZA ASSOCIATES, LLC, a Georgia limited liability company
(hereinafter referred to as the "Landlord") and INTERLAND, INC., a Georgia
Corporation (hereinafter referred to as "Tenant");
W I T N E S S E T H:
Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises for the term and subject to the terms, covenants,
agreements and conditions hereinafter set forth, to each and all of which
Landlord and Tenant hereby mutually agree.
1. DEFINITIONS. For the purposes of this Lease and in addition to the
terms defined elsewhere in this Lease, the following defined terms shall have
the meanings ascribed thereto in this Paragraph 1:
(a) "Additional Rental" shall mean the sums payable pursuant to
subparagraph 3(a)(2) of this Lease.
(b) "Base Rental" shall mean the sums payable pursuant to
subparagraph 3(a)(1) of this Lease.
(c) "Building" shall mean the land and other real property
located in Atlanta, Georgia, as more particularly described on Exhibit A
attached hereto and made a part hereof, the building constructed thereon known
as "SunTrust Plaza Garden Offices" (which name may be changed at Landlord's sole
discretion), and all other improvements on or appurtenances to said real
property.
(d) "Default Rate" shall mean a rate per annum equal to the
lesser of (i) the Prime Rate plus three (3) percentage points or (ii) the
highest rate of interest permitted by law.
(e) "Delivery Date" as defined in Paragraph 2(a).
(f) "Office Tower" shall mean all office floors of the Building.
(g) "Operating Expenses" shall mean the aggregate of all costs
and expenses of ownership, management, operation and maintenance of the Building
and supporting facilities of the Building that are properly allocable to the
Office Tower including, without limitation, the following:
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(i) All wages, salaries and related expenses and benefits of all
employees engaged in the operation, management, maintenance, repair and
security of the Building and the costs of a management office and
mailroom in the Building and a pro rata share of central management
office incurred by Landlord;
(ii) All costs of the purchase and rental of supplies, materials
and equipment used in the operation and maintenance of the Building;
(iii) All costs of utilities, including without limitation water
and electricity and other energy sources and costs for sewer and waste
disposal and for heating, lighting, air conditioning and ventilating the
Building;
(iv) All costs of maintenance, janitorial and service agreements
for the Building and the equipment therein, including, without
limitation, security services, window cleaning and elevator maintenance;
(v) All accounting costs, including all costs of audits by
certified public accountants;
(vi) All costs and premiums of all insurance, including but not
limited to fire, casualty and liability insurance applicable to the
Building and Landlord's personal property used in connection therewith;
(vii) All costs of repairs, replacements and general maintenance
(excluding repairs and general maintenance paid by proceeds of insurance
or directly by Tenant or other third parties, and alterations
attributable solely to tenants of the Building other than Tenant);
(viii) Any and all common area maintenance costs relating to
public areas of the Building (other than the food court and the parking
garage, but including the entrance to the elevators serving the Office
Tower), sidewalks, landscaping and service areas;
(ix) All taxes, service payments in lieu of taxes, excises,
assessments, levies, fees or charges, general and special, ordinary and
extraordinary, unforeseen as well as foreseen, of any kind which are
assessed, levied, charged, confirmed or imposed by any governmental or
public authority upon or against the Building or its operations; Tenant
acknowledges that Landlord entered into a Taxable Revenue Bond Financing
Agreement with the Development Authority of Xxxxxx County (the "Bond
Financing") pursuant to which the Landlord's interest in the Building
will be assessed at a fraction of the value which would otherwise have
been assessed, with the fraction varying over a ten (10) year period.
Tenant agrees that the amount of
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real property taxes to be included in the Operating Expenses shall be
based upon the value of the Building which would have been assessed
prior to the reduction in assessed value resulting from the Bond
Financing;
(x) All legal expenses incurred for the benefit of the entire
Building;
(xi) All management fees (not to exceed three percent (3%) of
the gross Building revenue);
(xii) All costs incurred in compliance with new or revised
federal or state laws or municipal or county ordinances or codes or
regulations promulgated under any of the same; and
(xiii) Amortization of all costs of capital improvement items
which are primarily for the purpose of reducing Operating Expenses or
which may be required by any governmental or public authority. All such
costs, together with interest thereon at the Prime Rate as of the date
of the completion of construction or installation of such capital item
plus two (2) percentage points per annum, shall be amortized over the
reasonable life of the capital improvement items with the reasonable
life and amortization schedule being determined in accordance with
generally accepted accounting principles and in no event to extend
beyond the reasonable life of the Building; provided, however, that with
respect to capital improvements which are made for the purpose of
reducing Operating Expenses, the amount to be included in the Operating
Expenses each year shall not exceed the amount of the reduction in
Operating Expenses estimated by Landlord to result from such capital
improvement.
(xiv) The cost of the annual business license obtained by
Landlord in connection with the operation of the Building.
Notwithstanding the foregoing, Operating Expenses shall not include depreciation
on the Building, costs of tenants' improvements, real estate brokers'
commissions, advertising costs, costs associated exclusively with leasable
retail areas, interest paid in connection with loans secured by the Building and
capital items other than those capital items referred to in item (xiii) above.
Notwithstanding any other provision in this Lease, in the event that, during any
full or partial calendar year constituting a portion of the term of this Lease,
less than ninety-five percent (95%) of the total Rentable Area of the Office
Tower is actually occupied, the calculation of Operating Expenses for such full
or partial calendar year shall be adjusted to reflect Landlord's reasonable
estimate of Operating Expenses had ninety-five percent (95%) of the total
Rentable Area of the Office Tower been occupied. Landlord and Tenant acknowledge
that certain of the costs and expenses of ownership, management, operation and
maintenance of the Building and supporting facilities are to be allocated
entirely to the Office Tower, certain of such costs are to be allocated entirely
to any retail areas or parking garage located in the Building, and certain of
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such costs are to be allocated among the Office Tower and any and all retail
areas and parking garage, and certain of such costs are to be allocated among
one or more of the components of the Building and the components of SunTrust
Plaza located at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx. The determination
of such costs and their allocation shall be made on an accrual basis and in
accordance with generally accepted accounting principles applied on a consistent
basis.
(h) "Premises" shall mean the portion of the Office Tower
located on the floor(s) specified in the Basic Lease Information which is
highlighted or cross-hatched on the floor plan(s) attached hereto as Exhibit B
and by this reference made a part hereof.
(i) "Prime Rate" shall mean the prime rate or its equivalent
announced and in effect from time to time by the Atlanta office of Bank of
America or its successor.
(j) "Rentable Area" of the Premises and of the Office Tower is
stipulated by Landlord and Tenant to be the respective number of square feet set
forth for each in the Basic Lease Information, subject to adjustment if Landlord
determines that the number of square feet in the Premises or Office Tower as
constructed varies from the number of square feet set forth for each in the
Basic Lease Information Such Rentable Area and useable area shall be measured in
accordance with the American National Standard method of measuring floor area in
office buildings of the Building Owners and Managers Association International
(ANSI/BOMA Z65.1-1996) the "BOMA Standard." Prior to the Commencement Date, the
Premises shall be measured by Landlord's architect in accordance with the
foregoing standards and the Rentable Area of the Premises shall be revised by
written amendment between Landlord and Tenant to reflect any variance between
the "as built" Rentable Area of the Premises, as so determined by Landlord's
architect, and the number of square feet of Rentable Area set forth in the
preceding sentence.
(k) "Rental" shall mean, collectively, Base Rental, Additional
Rental and all other sums payable by Tenant to Landlord which are deemed or
designated Rental, additional rent or rent pursuant to the terms of this Lease.
(l) "Tenant's Percentage Share" shall mean the percentage figure
specified in the Basic Lease Information. Landlord and Tenant acknowledge that
Tenant's Percentage Share has been obtained by dividing the Rentable Area of the
Premises by the total Rentable Area of the Office Tower, and multiplying such
quotient by 100. In the event Tenant's Percentage Share is changed during a
calendar year by reason of a change in the Rentable Area of the Premises or the
Rentable Area of the Office Tower, Tenant's Percentage Share shall thereafter
mean the result obtained by using the revised Rentable Area in the foregoing
formula, and for the purposes of Paragraph 3 of this Lease, Tenant's Percentage
Share shall be determined on the basis of the number of days during such
calendar year at each such percentage share.
2. TERM; COMPLETION OF IMPROVEMENTS.
(a) Landlord shall make the Premises (or the portion thereof for
which Tenant
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Improvements have been constructed) available to Tenant for installation of
Tenant's furniture, fixtures and equipment (the "Delivery Date") upon
satisfaction of the following: (i) substantial completion of the Premises Shell
and Tenant Improvements to be constructed by Landlord in substantial accordance
with the Approved Plans and Specifications other than "punch list" items, (ii)
Landlord has obtained a Certificate of Occupancy or Temporary Certificate of
Occupancy for such space which permits installation of furniture, fixtures and
equipment, (iii) the mechanical, electrical and plumbing services to be provided
by Landlord as contemplated in this Lease have been installed and are in good
working order, (iv) access to the Premises is available to Tenant, and (v)
Landlord has completed installation in the Building of all building code
required fire alarms, fire sprinklers, smoke detectors, exit lights and life
safety equipment and the same is operational. By entry into possession of the
Premises, Tenant accepts the Premises as being in the condition in which
Landlord is obligated to deliver the Premises, except for punch list items
included in a written notice from Tenant to Landlord within thirty (30) days
after the Commencement Date and latent defects.
(b) The term of this Lease shall commence on the Commencement
Date and, unless sooner terminated as hereinafter provided, shall end on the
Expiration Date, as such dates are respectively specified in the Basic Lease
Information.
(c) If Landlord, for any reason whatsoever, cannot deliver
possession of the initial 21,186 square feet of the Premises by July 3, 2000
(the "Projected First Delivery Date") or the remainder of the Premises by August
4, 2000 (the "Projected Second Delivery Date"), then Tenant shall have the
rights set forth below as its sole and exclusive remedy for Landlord's failure
to deliver possession of the Premises by the respective Projected Delivery
Dates, Tenant hereby waiving any and all other rights and remedies at law or in
equity against Landlord for such failure, provided that each of the Projected
Delivery Dates shall be extended by any period or periods of delay (A)
attributable to Tenant (including without limitation those delays set forth in
Paragraph 3 of Exhibit C hereto), or (B) attributable to any cause of any kind
whatsoever which is beyond the reasonable control of Landlord including, without
limitation, those events set forth in Paragraph 40 hereof. If the Delivery Date
for any portion of the Premises does not occur by its respective Projected
Delivery Date, as extended as provided above, then (i) Tenant shall receive one
(1) day of free Base Rental for the first fifteen (15) days by which the
respective Delivery Date occurs after the Projected Delivery Date, as extended,
(ii) Tenant shall receive two (2) days of free Base Rental for each day after
the fifteenth day by which the respective Delivery Date occurs after the
Projected Delivery Date, as extended, and (iii) if the respective Delivery Dates
have not occurred within seventy-five days of the Projected Delivery Dates, as
extended, then Tenant at its option, at any time thereafter but prior to the
delivery of possession, may terminate this Lease by notice to Landlord, and
Landlord and Tenant shall thereupon be released from all obligations under this
Lease; provided, however, that Landlord shall pay Tenant an amount equal to the
free Base Rental which would have accrued to Tenant from the Projected Delivery
Date, as extended, through the date which is seventy-five (75) days after the
Projected Delivery Date, as extended.
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(d) Landlord and Tenant shall execute a memorandum confirming
the Commencement Date and the commencement of Base Rental and Additional Rental
for each portion of the Premises in the form attached hereto as Exhibit F.
3. RENTAL.
(a) Tenant shall pay to Landlord throughout the term of this
Lease, as rental for the Premises, beginning on the Commencement Date for each
portion of the Premises , the following sums:
(1) The Base Rental payable per month shall be one-twelfth
(1/12th) of the product of (i) the number of square feet of Rentable
Area of the Premises as specified in the Basic Lease Information, as may
be adjusted as hereinabove provided, and (ii) the applicable square foot
rate specified in the Basic Lease Information as the "Base Rental".
(2) In addition to the Base Rental payable pursuant to
subparagraph 3(a)(1), for each calendar year of the term of this Lease,
Tenant, as Additional Rental, shall pay Tenant's Percentage Share, as
specified in the Basic Lease Information, of the Operating Expenses for
the then current calendar year. From the Commencement Date through the
end of December, 2000, the Additional Rental shall be equal to $6.75 per
square foot per year of Rentable Area of the Premises. Thereafter, the
Additional Rental payable pursuant to this subparagraph (2) shall be
determined and adjusted in accordance with the provisions of
subparagraph 3(b).
(b) The determination and adjustment of Additional Rental
contemplated under subparagraph 3(a)(2) shall be made in accordance with the
following procedures:
(1) (A) During December of each calendar year during the term of
this Lease, or as soon after each such December as practicable, Landlord
shall give Tenant written notice of its estimate of Additional Rental
payable under subparagraph 3(a)(2) for the ensuing calendar year. On or
before the first day of each month during the ensuing calendar year,
Tenant shall pay to Landlord one-twelfth (1/12th) of such estimated
amount together with the Base Rental.
(B) In the event Landlord's notice set forth in subparagraph
3(b)(1)(A) is not given in December, until the calendar month after such
notice is delivered by Landlord, Tenant shall continue to pay to
Landlord monthly during the ensuing calendar year estimated payments
equal to the amounts payable during the calendar year just ended. Upon
receipt of any such post-December notice, Tenant shall (i) commence as
of the immediately following calendar month, and continue for the
remainder of the calendar year, to pay to Landlord monthly such new
estimated payments and (ii) if the monthly installment of the new
estimate of such Additional Rental is greater than the monthly
installment of the estimate for the previous calendar year, pay to
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Landlord within thirty (30) days of the receipt of such notice an amount
equal to the difference of such monthly installment multiplied by the
number of full and partial calendar months of such year preceding the
delivery of such notice.
(C) If at any time or times it appears to Landlord that the
amount payable under subparagraph 3(a)(2) for the current calendar year
will vary from Landlord's estimate by more than five percent (5%),
Landlord may 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. Failure to deliver an estimate of Additional Rental
payable under this Paragraph 3 or to make a revision contemplated by the
immediately preceding sentence shall not prejudice Landlord's right to
collect the full amounts of Additional Rental.
(2) Within one hundred sixty (160) days after the close of each
calendar year or as soon after such 160-day period as practicable,
Landlord shall deliver to Tenant a statement of the actual amount of
Additional Rental payable for the calendar year just ended certified by
a financial officer of Landlord or its management company or by
certified public accountants designated by Landlord, and such statement
shall be final and binding upon Landlord and Tenant absent manifest
error. If on the basis of such statement Tenant owes an amount of
Additional Rental that is less than the estimated payments for the
calendar year just ended previously made by Tenant, Landlord shall
credit such excess to the next payments of Additional Rental coming due
or, if the term of this Lease 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). If on the basis
of such statement Tenant owes an amount of Additional Rental that is
more than the estimated payments for the calendar year just ended
previously made by Tenant, Tenant shall pay the deficiency to Landlord
within thirty (30) days after delivery of the statement.
(3) For partial calendar years during the term of this Lease,
the amount of Additional Rental payable pursuant to subparagraph 3(a)(2)
that is applicable to that calendar year shall be prorated based on the
ratio of the number of days of such calendar year falling during the
term of this Lease to 365. The expiration or termination of this Lease
shall not affect the obligations of Tenant and rights of Landlord
pursuant to subparagraphs 3(a)(2) and 3(b)(2) which remain to be
performed after such expiration or termination, Landlord and Tenant
agreeing that said obligations and rights shall survive such expiration
or termination.
(c) Base Rental and Additional Rental shall be paid to Landlord,
in advance, on or before the first day of the term hereof and on or before the
first day of each and every successive calendar month thereafter during the term
of this Lease. All other Rental shall be paid as provided elsewhere in this
Lease. In the event the term of this Lease commences on a day
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other than the first day of a calendar month or ends on a day other than the
last day of a calendar month, then the monthly rental for the first and last
fractional months of the term hereof shall be appropriately prorated.
(d) Rental shall be paid to Landlord, without demand, deduction
or offset, in lawful money of the United States of America at Landlord's address
for notices hereunder or to such other person or at such other place as Landlord
may from time to time designate in writing. All Rental and other amounts of
money payable by Tenant to Landlord under this Paragraph 3 or under this Lease,
if not paid when due, shall be subject to a late fee of three (3%) percent of
the amount past due (which late fee represents an agreed upon charge for the
administrative expense suffered by Landlord as the result of such late payment
and not payment for the use of money) and shall bear simple interest from the
due date until paid at the Default Rate, and Tenant agrees to pay said late fee
and interest promptly and without demand; provided, however, that such late fee
shall not be due with respect to one late payment within any twelve (12) month
period that is paid within five (5) days after the date on which it is due.
4. USE. The Premises shall be used for general office, data center, call
center, and sales office purposes and no other purpose whatsoever. Tenant shall
not do or permit to be done in or about the Premises, nor bring or keep or
permit to be brought or kept therein, anything which is prohibited by or will in
any way conflict with any law, statute, ordinance or governmental rule or
regulation now in force or which may hereafter be enacted or promulgated, or
which is prohibited by the standard form of fire insurance policy, or will in
any way increase the existing rate of or affect any fire or other insurance upon
the Building or any of its contents, or cause a cancellation of any insurance
policy covering the Building or any part thereof or any of its contents. Tenant
shall not do or permit anything to be done in or about the Premises which will
in any way obstruct or interfere with the rights of other tenants of the
Building, or injure or annoy them, or use or allow the Premises to be used for
any improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises or commit or
suffer to be committed any waste in, on or about the Premises.
5. SERVICES.
(a) Landlord shall maintain in reasonably good order and repair,
subject to normal wear and tear, casualty and condemnation, the Building
(excluding the Premises and other portions of the Building leased to other
tenants), including, without limitation, public areas, any and all parking
levels and landscaped areas, elevators, stairs, common corridors, common
restrooms, the mechanical, plumbing and electrical systems and the structure
itself. Notwithstanding the foregoing obligation, the cost of any repairs or
maintenance to the foregoing necessitated by the intentional acts or omissions
(other than those involved in the use of the Premises for its intended
purposes), negligence or gross negligence of Tenant, or its agents, employees,
contractors, invitees, licensees, tenants or assignees, shall be deemed Rental
hereunder and shall be reimbursed by Tenant to Landlord upon demand.
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(b) Landlord shall furnish the Premises with (1) electricity as
provided on Exhibit C-1 hereto, (2) heat and air conditioning to the extent
reasonably required for the comfortable occupancy by Tenant in its use of the
Premises during the period from 8:00 a.m. to 6:00 p.m. on weekdays and from 8:00
a.m. to 2:00 p.m. on Saturdays (except New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving and Christmas and such other public
holidays hereafter created by governmental authority and designated by
Landlord), or such shorter period as may be prescribed by any applicable
policies or regulations adopted by any utility or governmental agency, (3)
elevator service, (4) lighting replacement (for building standard lights), (5)
restroom supplies, (6) window washing and (7) security service and cleaning
service during the times and in the manner that such services are customarily
and generally furnished in the majority of comparable Class A office buildings
in the area. Tenant shall have access to the Premises during the term of this
Lease twenty-four hours per day, seven days per week. Landlord shall not be in
default hereunder or be liable for any damages directly or indirectly resulting
from, nor shall the Rental be abated by reason of, (i) the installation, use or
interruption of use of any equipment in connection with the furnishing of any of
the foregoing services, (ii) failure to furnish or delay in furnishing any such
services when such failure or delay is caused by accident or any condition
beyond the reasonable control of Landlord or by the making of necessary repairs
or improvements to the Premises or to the Building, or (iii) the limitation,
curtailment, rationing or restrictions on use of water, electricity, gas or any
other form of energy serving the Premises or the Building. Landlord shall use
reasonable efforts diligently to remedy any interruption in the furnishing of
such services.
(c) Whenever heat generating equipment or lighting other than
Building standard lights are used in the Premises by Tenant which affect the
temperature otherwise maintained by the air conditioning system, Landlord shall
have the right, after notice to Tenant and Tenant's failure to cure such problem
within ninety (90) days after such notice, to install supplementary air
conditioning facilities in the Premises or otherwise modify the ventilating and
air conditioning system serving the Premises, and the reasonable and actual cost
of installation, construction, maintenance and repair of such facilities and
modifications shall be borne by Tenant. Tenant shall also pay as Rental the
reasonable and actual cost of providing all cooling and heating energy to the
Premises in excess of that required for normal office use or during hours
requested by Tenant when heating and air conditioning is not otherwise furnished
by Landlord. If Tenant installs lighting requiring power in excess of that
required for normal office use in the Building or if Tenant installs equipment
requiring power in excess of that required for the normal desk-top office
equipment and normal copying equipment described in subparagraph 5(b) above,
Tenant shall pay, as Rental, the cost of such excess power together with the
cost of installing any additional risers or other facilities that may be
necessary to furnish such excess power to the Premises. Landlord, at its
reasonable discretion, shall have the right to install a meter or meters to
measure the usage of the excess and supplementary power and air conditioning
described herein, and the reasonable and actual cost of the installation of such
meter or meters and the repairs and maintenance thereof shall be borne solely by
Tenant. In addition, Tenant shall have the right, at its expense, to install a
meter to measure the electrical usage of the
9
Premises, and tenant shall pay the cost of such electricity without imposition
of any additional management fees by Landlord.
(d) The following items on Exhibit G shall apply to the
Premises: 1 through 4, 6(d), 6(f), 7, 8, 9(a), 10(a), 10(c), 11, 12, 13, 14(f),
15, 17 and 18.
6. TAXES PAYABLE BY TENANT. Tenant covenants and agrees to be liable for
and pay in a timely manner all taxes and assessments levied or assessed against
personal property, furniture and fixtures placed by Tenant in the Premises. In
addition to Base Rental, Additional Rental and other charges to be paid by
Tenant hereunder, Tenant shall promptly reimburse Landlord upon demand, as
Rental, for any and all taxes payable by Landlord (other than net income taxes)
whether or not now customary or within the contemplation of the parties hereto:
(a) upon, measured by or reasonably attributable to the cost or value of
Tenant's equipment, furniture, fixtures and other personal property located in
the Premises or by the cost or value of any improvements made in or to the
Premises by Tenant, other than Tenant Improvements made by Landlord pursuant to
Exhibit C hereof, regardless of whether title to such improvements shall be in
Tenant or Landlord; (b) upon or measured by the monthly rental payable
hereunder, including, without limitation, any gross income tax or excise tax
levied by the City of Atlanta, County of Xxxxxx, the State of Georgia, the
federal government or any other governmental body with respect to the receipt of
such rental; (c) upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof; (d) upon this transaction or any document to
which Tenant is a party creating or transferring an interest in the Premises. In
the event that it shall not be lawful for Tenant so to reimburse Landlord, the
monthly Base Rental payable to Landlord under this Lease shall be revised to net
Landlord the same net Base Rental after imposition of any such tax upon Landlord
as would have been payable to Landlord prior to the imposition of any such tax.
7. ALTERATIONS. Except for any initial improvement of the Premises by
Landlord pursuant to the Approved Plans and Specifications as defined in Exhibit
C, which shall be governed by the provisions of said Exhibit C and any
improvements costing less than $20,000 and which do not affect the structure or
systems of the Building, Tenant shall not make, suffer or permit to be made any
alterations, additions or improvements to or of the 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.
Any such alterations, additions or improvements to the Premises consented to by
Landlord shall be made by Landlord or under Landlord's supervision for Tenant's
account by a contractor approved by Tenant and Landlord and Tenant shall
reimburse Landlord for all costs thereof (including a reasonable charge for
Landlord's overhead and services not to exceed five (5%) percent of the costs of
such alterations), as Rental, within ten (10) days after receipt of a statement.
The Tenant Improvements and all such alterations, additions and improvements,
except for computers and related equipment associated with the Data Center,
shall become Landlord's property at the expiration or earlier termination of the
term hereof and shall remain on the Premises without compensation to Tenant
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unless Landlord elects by notice to Tenant at the time Landlord approves such
alterations, additions or 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
Paragraph 9 hereof, Tenant shall promptly restore, at its sole cost and expense,
the Premises to its condition prior to the installation of such alterations,
additions and improvements, normal wear and tear excepted.
8. LIENS. Tenant shall at all times keep the Premises and the Building
free from any liens arising out of any work performed, materials furnished or
obligations incurred by Tenant. Landlord shall have the right to post and keep
posted on the Premises any notices that may be provided by law or which Landlord
may deem to be proper for the protection of Landlord, the Premises and the
Building from such liens.
9. REPAIRS. Tenant shall, at Tenant's sole cost and expense, at all
times during the term hereof keep, and at the end of the term of this Lease
surrender to Landlord, the Premises and every part thereof and all alterations,
additions and improvements thereto in good condition and repair, except for
normal wear and tear and damage (which damage shall not have been caused by the
negligence or intentional act of Tenant or its agents, employees, contractors,
invitees, licensees, tenants or assigns) thereto by fire, earthquake, act of God
or the elements. To the fullest extent permitted by law, except as provided in
Paragraph 22(b) Tenant hereby waives all rights to make repairs at the expense
of Landlord or in lieu thereof to vacate the Premises as may be provided by any
law, statute or ordinance now or hereafter in effect. Landlord has no obligation
and has made no promise to alter, remodel, improve, repair, decorate or paint
the Premises or any part thereof, except as specifically and expressly herein
set forth. No representations respecting the condition of the Premises or the
Building have been made by Landlord to Tenant, except as specifically and
expressly herein set forth.
10. DESTRUCTION OR DAMAGE.
(a) In the event the Premises or the portion of the Building
necessary for Tenant's occupancy are damaged by fire, earthquake, act of God,
the elements or other casualty, Landlord shall forthwith repair the same,
subject to the provisions of this Paragraph 10 hereinafter set forth, if such
repairs can, in Landlord's opinion, be made within ninety (90) days following
the date of such fire or other casualty. Notwithstanding any other provision
contained in this Paragraph, the commencement of repair or restoration work by
Landlord hereunder shall in no event be deemed a representation or warranty by
Landlord that such repairs or restoration can or will in fact be completed
within such 90-day period, and Landlord shall in no event be liable to Tenant
for any failure or inability to complete said repairs or restoration within such
90-day period. This Lease shall remain in full force and effect except that, if
such damage is not the result of the negligence or intentional act of Tenant or
Tenant's agents, employees, contractors, licensees, invitees, subtenants or
assigns, an abatement of Base Rental and
11
Additional Rental shall be allowed Tenant for such part of the Premises as shall
be rendered unusable by Tenant in the conduct of its business during the time
such part is so unusable. If more than fifty (50) percent of the Premises is
deemed unusable in the last 12 months of the lease or there is a total
destruction of the Building, the Lease shall automatically terminate as of the
date of such destruction.
(b) If such repairs cannot, in Landlord's opinion, be made
within ninety (90) days following the date of such fire or other casualty,
Landlord may elect, upon notice to Tenant within sixty (60) days after the date
of such fire or other casualty, to repair or restore such damage, in which event
this Lease shall continue in full force and effect, but the Base Rental and
Additional Rental shall be partially abated as provided in subparagraph 10(a).
If Landlord does not so elect to make such repairs, this Lease shall terminate
as of the date of such fire or other casualty.
(c) Notwithstanding anything to the contrary in this Lease, if
the holder of a "Landlord's Mortgage" (as defined in Paragraph 24) requires that
any insurance proceeds from a casualty loss be paid to it, then Landlord shall
have the option to cancel this Lease as of the date of the casualty by written
notice to Tenant given within one hundred --eighty (180) days after said holder
notifies Landlord that it is collecting the insurance proceeds.
(d) If the Premises are to be repaired under this Paragraph 10
by Landlord, Landlord's obligation to repair the Premises shall be discharged
upon restoration of the Premises to Premises Shell, as defined in Exhibit C, and
payment toward restoration of Tenant Improvements a sum equal to Landlord's
Contribution prorated to the number of square feet of Rentable Area in that
portion of the Premises damaged. Tenant shall pay all other costs of repairing
the Premises and shall be responsible for carrying such casualty insurance with
respect to such other Tenant Improvements as set forth in Paragraph 11 hereof.
In no event shall Landlord be required to rebuild, repair or replace any
personal property, furniture, supplies, equipment or trade fixtures which belong
to Tenant.
11. INSURANCE. Tenant shall, at its sole cost and expense, obtain and
maintain during the term of this Lease comprehensive or commercial general
liability coverage for bodily injury and property damage insuring against any
and all liability of Tenant and Landlord arising out of the maintenance, use and
occupancy of the Premises with liability limits of not less than $1,000,000 for
property damage and $2,000,000.00 for bodily injury or death. Landlord,
Landlord's manager of the Building and all holders of a Landlord's Mortgage
shall be additional insured on all such policies. All policies of liability
insurance specified in this Lease shall specifically insure Tenant's performance
of the indemnity agreements contained in this Lease. Tenant shall also, at its
sole cost and expense, obtain and maintain during the term of this Lease fire
and extended coverage insurance insuring the full replacement cost of its
furniture, equipment, supplies and personal property contained in the Premises,
together with the excess value of the Tenant Improvements over the Landlord's
Contribution. In addition, Tenant shall give notice to its insurance carrier or
carriers of coverage herein required and any waivers of
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liability and indemnity agreements contained in this Lease. All insurance
required by the terms of this Paragraph 11 must be issued by and binding upon an
insurance company licensed or authorized to do business in the State of Georgia,
rated at least Rating A-, Financial Size VII by A.M. Best Company (or an
equivalent rating by another rating agency if the Best's ratings are
discontinued). Within thirty (30) days prior to the Commencement Date and within
thirty (30) days prior to each expiration date of each such policy, Tenant shall
provide Landlord with certificates of insurance reflecting the coverage required
herein and providing that such insurer will notify Landlord in writing thirty
(30) days prior to a material change or cancellation of such insurance.
12. RELEASE AND SUBROGATION.
(a) In addition to, and not in lieu of, any and all other
releases and waivers by Tenant contained in this Lease, Tenant hereby waives,
and releases Landlord from, any and all claims, rights, demands and causes of
action which it might have at any time against Landlord on account of loss or
damage that is or should be covered by any insurance policy Tenant has or is
required to have pursuant to Paragraph 11 of this Lease. Tenant shall obtain
from its respective insurers under all policies of fire, theft, public
liability, workmen's compensation and other insurance maintained by Tenant at
any time during the term of this Lease insuring or covering the Premises or any
portion thereof or operations therein or therefrom, a waiver of all rights of
subrogation which the insurer of Tenant might have against Landlord and the
other affiliated parties described in Paragraph 11 hereof. If a waiver of
subrogation is not available under a policy maintained by Tenant, Tenant shall
cause Landlord and the other affiliated parties described in Paragraph 11 hereof
to be named as additional insureds. Tenant shall indemnify and hold harmless
Landlord against any loss or expense, including reasonable and actual attorney's
fees, resulting from the failure to obtain such waiver.
(b) In addition to, and not in lieu of, any and all other
releases and waivers by Landlord contained in this Lease, Landlord hereby
waives, and releases Tenant from, any and all claims, rights, demands and causes
of action which it might have at any time against Tenant on account of loss or
damage that is or should be covered by any insurance policy Landlord has or is
required to have pursuant to this Lease. Landlord shall obtain from its
respective insurers under all policies of fire, theft, public liability,
workmen's compensation and other insurance maintained by Landlord at any time
during the term of this Lease insuring or covering the Building or any portion
thereof or operations therein or therefrom, a waiver of all rights of
subrogation which the insurer of Landlord might have against Tenant. If a waiver
of subrogation is not available under a policy maintained by Landlord, Landlord
shall cause Tenant to be named as an additional insured. Landlord shall
indemnify and hold harmless Tenant against any loss or expense, including
reasonable and actual attorney's fees, resulting from the failure to obtain such
waiver.
13. INDEMNIFICATION.
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(a) Tenant. Tenant agrees that neither Landlord nor its
partners, members, officers, employees, agents or representatives shall be
liable and hereby waives all claims against Landlord, its partners, members,
officers, employees, agents and representatives for damage to any property or
injury or death of any person in, upon or about the Premises arising at any time
and from any cause other than solely by reason of the gross negligence or
intentional misconduct of Landlord, its authorized employees or agents acting
within the scope of their employment, and Tenant shall indemnify and hold
harmless Landlord, and its partners, officers, employees, agents and
representatives from any and all loss, cost, damage and expense incurred or
suffered by Landlord or said other parties arising out of or resulting from (i)
the use or occupancy of the Premises, except such as is caused solely by the
gross negligence or intentional misconduct of Landlord, its authorized agents or
employees acting within the scope of their employment, or (ii) the willful
misconduct or gross negligence of, or breach or violation of any provision of
this Lease by, Tenant or its agents, contractors, employees, licensees or
invitees. The foregoing indemnity obligation of Tenant shall include reasonable
and actual attorney's fees, investigation costs and all other reasonable costs
and expenses incurred by Landlord from the first notice that any claim or demand
is to be made or may be made. The provisions of this Paragraph 13(a) shall
survive the termination of this Lease with respect to any damage, injury or
death prior to such termination.
(b) Landlord. Landlord shall indemnify and hold harmless Tenant,
and its officers, employees, agents and representatives from any and all loss,
cost, damage and expense incurred or suffered by Tenant or said other parties
arising out of or resulting from (i) any accident, injury or damage occurring at
any location within the Building other than within the Premises or other areas
of the Building in the possession or control of other tenants of the Building,
except such as is caused solely by the gross negligence or intentional
misconduct of Tenant, its authorized agents or employees acting within the scope
of their employment, or (ii) the willful misconduct or gross negligence of
Landlord or its agents, contractors, employees, licensees or invitees. The
foregoing indemnity obligation of Landlord shall include reasonable and actual
attorney's fees, investigation costs and all other reasonable costs and expenses
incurred by Tenant from the first notice that any claim or demand is to be made
or may be made. The provisions of this Paragraph 13(b) shall survive the
termination of this Lease with respect to any damage, injury or death prior to
such termination.
14. COMPLIANCE WITH LEGAL REQUIREMENTS. Tenant shall at its sole cost
and expense promptly comply with (i) all laws, statutes, ordinances and
governmental rules, regulations and requirements now in force or which may be
hereafter in force, (ii) the requirements of any board of fire underwriters or
other similar body now or hereafter constituted, (iii) any direction or
occupancy certificate issued pursuant to any law by any public officer or
officers, and (iv) the provisions of all recorded documents affecting the
Premises, insofar as any thereof relate to or affect the condition, use or
occupancy of the Premises, excluding requirements of structural changes not
related to or affected by improvements made by or for Tenant or not necessitated
by Tenant's acts.
14
15. ASSIGNMENT AND SUBLETTING. Tenant shall not at any time during the
term of this Lease have the right to sublet all or any part of the Premises, or
assign this Lease or any right or interest therein, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed, provided that Landlord may base such decision on, inter alia,
Landlord's perception of the quality, financial capacity (as to an assignee
only) and type of business of the proposed assignee or sublessee and the type of
tenant mix and reputation Landlord is attempting to achieve for the Building.
Tenant may assign or sublet this lease without Landlord's consent, but subject
to the limitations set forth below, to any corporation which is the parent
company of Tenant or which is engaged in the same business activity as Tenant
and more than fifty (50%) percent of the stock of which is owned by Tenant.
Tenant shall not, without Landlord's prior written consent, mortgage, pledge,
encumber or otherwise transfer this Lease or any interest under it or permit the
use or occupancy of the Premises or any part thereof by anyone other than
Tenant. Sale or transfer of a controlling ownership interest of Tenant as it
existed on the date this Lease is executed shall be deemed an assignment of this
Lease. Should Tenant desire to assign this Lease or any right or interest herein
or sublet the Premises or any part thereof, Tenant shall give Landlord written
notice of such desire, which notice shall contain (1) the name and address of
the proposed subtenant or assignee and its form of organization, (2) the nature
of the proposed subtenant's or assignee's business to be conducted in the
Premises, (3) the terms and conditions of the proposed sublease or assignment,
and (4) financial statements for the three most recent completed fiscal years of
the proposed subtenant or assignee and such other financial information as
Landlord shall request and a bank reference, together with a request that
Landlord approve such assignment or subletting. Together with the delivery of
said notice, Tenant shall also pay to Landlord an administrative processing fee
of $500.00, which fee shall be non-refundable in any event, whether or not
Landlord approves the proposed sublease or assignment. Landlord shall have a
period of fifteen (15) days following receipt of such written notice within
which to notify Tenant in writing that Landlord elects either (A) to deny Tenant
the right to consummate such subletting or assignment or (B) to terminate this
Lease as to the space so affected as of a date designated by Landlord (but in no
event less than sixty (60) days following such notice), in which event Tenant
will be relieved of all further obligations hereunder as to such space arising
after the effective date of such termination or (C) to permit Tenant to assign
this Lease or sublet such space, subject, however, to all of the following
conditions:
(a) The sublease or assignment shall be on the same terms and
conditions set forth in the notice given to Landlord.
(b) The proposed assignee or sublessee shall be engaged in a
business in the Premises which is consistent with the then standards of the
Building and is permitted by the provisions of Paragraph 4 hereof, and the use
of the Premises or any portion thereof by such subtenant or assignee will not,
in Landlord's estimation, increase the scope or quantity of services or
utilities then being furnished to Tenant as of the proposed date of assignment
or subletting, and the lease or use of the Premises or any portion thereof by
such subtenant or assignee will not cause Landlord to be in violation of any
provisions of any lease of any other tenant in the
15
Building.
(c) The proposed assignee is a respectable party of sufficient
financial worth to perform its obligations under this Lease, and Tenant shall
have provided Landlord with proof thereof.
(d) No subletting or assignment shall release Tenant of Tenant's
obligation or alter the primary liability of Tenant to pay the Rental and to
perform all other obligations to be performed by Tenant under this Lease.
(e) In the case of a subletting, fifty percent (50%) of (A) any
sums or other economic consideration (for example, but not by way of limitation,
increased rental, forgiveness of an obligation, or services given at no cost or
at reduced cost) received by Tenant or its agents as a result of such
subletting, whether denominated as rental under the sublease or otherwise, less
all reasonable expenses incurred by Tenant in connection with such sublease,
including brokerage commissions and economic consideration provided to such
sublessee, which exceed, in the aggregate, (B) the total sums which Tenant is
obligated to pay Landlord under this Lease either (i) for the Premises, if the
entire Premises is sublet, or (ii) pro rata on a square foot basis for that
portion of the Premises sublet, if less than the entire Premises is sublet,
shall be payable to Landlord as Rental under this Lease without affecting or
reducing any Rental or other obligation of Tenant under this Lease. In the case
of an assignment, any and all sums or other economic consideration (including,
without limitation, the examples set forth in the preceding sentence) received
by Tenant or its agents as a result of such assignment shall be payable to
Landlord as Rental under this Lease without affecting or reducing any Rental or
other obligation of Tenant under this Lease.
(f) If fifty (50%) percent or less of the Building other than
the Premises is leased to third party tenants at the time of entering into such
sublease or assignment, then all rental rates to be charged to such assignee or
sublessee shall not be less than the then current market rates for similar space
leased for a similar term in the Building or buildings of similar quality and
grade in the same locality as the Building, and no sublessee shall have any
right to assign or further sublet.
(g) Any and all options, including, without limitation,
expansion options, renewal options and rights of first refusal or negotiation,
granted pursuant to this Lease are not assignable and shall be null and void and
of no further force or effect on and after the effective date of such assignment
of this Lease or any right or interest therein or of any subletting of the
Premises or any part thereof.
The failure of Landlord to notify Tenant in writing of such election within such
fifteen (15) day period shall be deemed a refusal of such proposed assignment or
subletting. Where Landlord consents to any such assignment or sublease, Tenant
shall pay to Landlord, promptly upon demand, a reasonable & actual sum as
attorney's fees arising incident to such transaction and no
16
sublease or assignment shall be valid and no one shall occupy the Premises by
reason thereof until a fully executed counterpart of the sublease or assignment
has been delivered to Landlord. No space in the Building shall be listed or
offered to any broker or similar party for listing or advertisement, nor shall
Tenant advertise for assignment or subletting without providing Landlord ten
(10) days prior written notice thereof. Any attempted assignment, sublease or
other action by Tenant in violation of this Paragraph 15 shall be null and void
and shall constitute an Event of Default. This Lease, or any right or interest
hereof, shall not be assignable as to the interest of Tenant by operation of law
without Landlord's written consent. The acceptance of Rental by Landlord from
any other person or entity shall not be deemed to be a waiver by Landlord of any
provision hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of default by
any assignee or successor of Tenant in the performance of any of the terms of
this Lease, Landlord may proceed directly against Tenant without the necessity
of exhausting remedies against such assignee or successor. Landlord may consent
to subsequent assignments or subletting of this Lease or amendments or
modifications to this Lease with assignees of Tenant, without notifying or
obtaining the consent of Tenant, or any successor of Tenant, and such action
shall not relieve Tenant of liability under this Lease; provided that Landlord
may not increase Tenant's liability for monetary obligations under this Lease
without Tenant's prior written consent.
16. RULES. Tenant shall faithfully observe and comply with the rules and
regulations attached to this Lease as Exhibit D and made a part hereof, and,
after notice thereof, all modifications thereof and additions thereto from time
to time promulgated in writing by Landlord. Landlord shall not be responsible to
Tenant for the nonperformance by any other tenant or occupant of the Building of
any of said rules and regulations. In the event of a conflict between the terms
of this Lease and said rules and regulations, this Lease shall control.
17. ENTRY BY LANDLORD. With reasonable notice to Tenant in other than
emergency situations or as needed to provide janitorial service, Landlord may
enter the Premises at reasonable hours to (a) inspect the same, (b) within 12
months of Lease expiration exhibit the same to prospective purchasers, lenders
or tenants, (c) determine whether Tenant is complying with all of its
obligations hereunder, (d) supply janitor service and any other service to be
provided by Landlord to Tenant hereunder, (e) post notices of nonresponsibility,
and (f) make repairs required of Landlord under the terms hereof or repairs to
any adjoining space or utility services or make repairs, alterations or
improvements to any other portion of the Building; provided, however, that all
such work shall be done as promptly as reasonably possible and so as to cause as
little interference to Tenant as reasonably possible. Tenant hereby waives any
claim for damages for any injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises or
any other loss occasioned by such entry. Landlord shall at all times have and
retain a key with which to unlock all of the doors in, on or about the Premises
(excluding Tenant's vaults, safes, trade secret areas and similar areas
reasonably designated in writing by Tenant in advance); and Landlord shall have
the right to use any and all reasonable means which Landlord may deem proper to
open said doors in an emergency in order to obtain entry to the Premises, and
any entry to the Premises obtained by
17
Landlord by any of said reasonable means, , shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into or a detainer of the
Premises or an eviction, actual or constructive, of Tenant from the Premises, or
any portion thereof. Tenant shall pay upon demand all repair costs and expenses
resulting from Landlord's emergency entry to the Premises to the extent
resulting from Tenant's failure to provide Landlord access to the Premises as
provided in this Lease.
18. EVENTS OF DEFAULT. The occurrence of any one or more of the
following events ("Events of Default") shall constitute a breach of this Lease
by Tenant: (a) if Tenant shall fail to pay any Rental when and as the same
becomes due and payable; provided, however, that Tenant shall not be in default
if such Rental is not more than ten (10) days late one time within any twelve
(12) month period; (b) if Tenant shall fail to pay any other sum when and as the
same becomes due and payable and such failure shall continue for more than ten
(10) days following written notice from Landlord; (c) if Tenant shall fail to
perform or observe any other term or provision of this Lease or of the rules and
regulations described in Paragraph 16 to be performed or observed by Tenant, and
(except for the failure set forth in clause (g) below) such failure shall
continue for more than thirty (30) days after written notice thereof from
Landlord; provided, however, in the event any such default cannot with
reasonable diligence be cured within such thirty day period, Tenant shall have
such additional reasonable period of time, not to exceed thirty (30) days, as is
necessary to cure such default so long as Tenant commences such cure within such
thirty day period and shall diligently prosecute in good faith such cure to
completion; (d) (Intentionally deleted); (e) if 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,
or shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or any material part of its properties; (f) if,
within forty-five (45) days after the commencement of any proceeding against
Tenant seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, such proceeding shall not have been dismissed, or if, within
forty-five (45) days after the appointment without the consent or acquiescence
of Tenant of any trustee, receiver or liquidator of Tenant or of any material
part of its properties, such appointment shall not have been vacated; or (g) if
Tenant shall fail to return a properly executed estoppel certificate to Landlord
in accordance with the provisions of Paragraph 27 hereof within the time period
designated for such return in Landlord's request for same.
19. REMEDIES. Upon the occurrence of any of the Events of Default,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever except as otherwise expressly
provided:
(a) Landlord, with or without terminating this Lease, may,
without prejudice
18
to any other remedy Landlord may have for possession, arrearages in Rental or
damages for breach of contract or otherwise, immediately or at any time
thereafter reenter the Premises and expel or remove therefrom Tenant and all
persons and entities claiming by or through Tenant (including, without
limitation, any and all sublessees and assignees) and all property belonging to
or placed on the Premises by, at the direction of or with the consent of Tenant
or its assignees or sublessees, by force if necessary, without being liable to
prosecution or any claim for damages therefor; and Tenant agrees to indemnify
Landlord for all loss and damage which Landlord may suffer by reason of such
termination of this Lease or of Tenant's right to possession hereunder, whether
through inability to relet the Premises or through decrease in rental, or
otherwise. Landlord may, at its option and with or without terminating this
Lease, also declare the difference, if any, between (i) the entire amount of the
Rental which would become due and payable during the remainder of the term of
this Lease, discounted to present value using a discount rate equal to the Prime
Rate in effect as of the date of such declaration, and (ii) the fair rental
value of the Premises during the remainder of the term of this Lease (taking
into account, among other factors, the anticipated duration of the period the
Premises will be unoccupied prior to reletting, and the anticipated costs of
reletting including any concessions then being granted to tenants in the market
in which the Building is located), also discounted to present value using a
discount rate equal to the Prime Rate in effect as of the date of such
declaration, to be due and payable immediately, and Tenant agrees to pay the
same at once, together with all Rental and other sums theretofore due, at the
office of Landlord in which Rental was theretofore payable; it being understood
and agreed that such payment shall be and constitute Landlord's liquidated
damages, Landlord and Tenant acknowledging and agreeing that it is difficult to
determine the actual damages Landlord would suffer from Tenant's breach hereof
and that the agreed upon liquidated damages are not punitive or penalties and
are just, fair and reasonable, all in accordance with O.C.G.A. Section 13-6-7.
(b) Landlord, with or without terminating this Lease, may
immediately or at any time thereafter relet the Premises or any part thereof for
such time or times, at such rental or rentals and upon such other terms and
conditions as Landlord in its sole discretion may deem advisable, and Landlord
may make any alterations or repairs to the Premises which it may deem necessary
or proper to facilitate such reletting; and Tenant shall pay all costs of such
reletting including but not limited to the cost of any such alterations and
repairs to the Premises, attorneys' fees and brokerage commissions; and if this
Lease shall not have been terminated, Tenant shall continue to pay all Rental
and all other charges due under this Lease up to and including the date of
beginning of payment of rent by any subsequent tenant of part or all of the
Premises, and thereafter Tenant shall pay monthly during the remainder of the
term of this Lease the difference, if any, between the rent and other charges
collected from any such subsequent tenant or tenants and the Rental and other
charges reserved in this Lease, but Tenant shall not be entitled to receive any
excess of any such rents collected over the Rental reserved herein.
(c) Landlord, with or without terminating this Lease, may
recover from Tenant all damages and expenses Landlord suffers or incurs by
reason of the Tenant's default, including, without limitation, costs of
recovering the Premises, attorney's fees and any
19
unamortized value of Tenant Improvements and brokerage commissions, all of which
shall be due and payable by Tenant to Landlord promptly upon demand.
(d) The remedies provided for in this Lease are in addition to
any other remedies available to Landlord at law or in equity by statute or
otherwise. All remedies provided in this Lease are cumulative and may be
exercised alternatively, successively or in any other manner. The exercise by
Landlord of any one or more of the rights and remedies provided in this Lease
shall not prevent the subsequent exercise by Landlord of any one or more of the
other rights and remedies herein provided.
20. LANDLORD'S RIGHT TO CURE DEFAULTS. All agreements and provisions to
be performed by Tenant under any of the terms of this Lease shall be at the sole
cost and expense of Tenant and without any abatement of Rental. If Tenant shall
fail to pay any sum of money, other than Base Rental, required to be paid by it
hereunder or shall fail to perform any other act on its part to be performed
hereunder or violates any provision of this Lease and such failure or violation
shall continue for thirty (30) days after written notice thereof by Landlord,
Landlord is hereby empowered and Landlord may, but shall not be obligated so to
do, and without waiving or releasing Tenant from any obligations of Tenant or
any other right or remedy of Landlord under this Lease or otherwise, make any
such payment, perform any such other act or correct any such violation on
Tenant's part to be made, performed or observed as in this Lease provided. All
reasonable and actual sums so paid by Landlord and all necessary incidental
costs shall be deemed Rental hereunder and shall be payable to Landlord promptly
on demand, and Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of the nonpayment thereof by
Tenant as in the case of default by Tenant in the payment of Base Rental. All
sums so paid by Landlord and all such necessary incidental expenses shall accrue
simple interest at the Default Rate from demand until payment, and Tenant shall
pay to Landlord such accrued interest together with such sums and expenses.
21. ATTORNEY'S FEES. If as a result of any breach or default in the
performance of any of the provisions of this Lease, Landlord or Tenant uses the
services of an attorney in order to secure compliance with such provisions or to
recover damages therefor, or to terminate this Lease or evict Tenant, the
non-prevailing party shall reimburse the prevailing party upon demand for any
and all reasonable and actual attorney's fees and expenses so incurred by the
prevailing party.
22. LANDLORD'S DEFAULT.
(a) Notwithstanding any other provision of this Lease to the
contrary, in the event of any default by Landlord under this Lease, Tenant's
sole and exclusive remedy shall be an action for actual damages (Tenant hereby
waiving any right of deduction or set-off against Rental due Landlord and any
claim for indirect, special or consequential damages), but prior to any such
action Tenant will give Landlord and any holder of Landlord's Mortgage (as
hereinafter defined) written notice specifying such default with particularity
(provided, however,
20
Tenant shall only be obligated to send a notice to such holder if Tenant has
previously been notified in writing of the identity and address of such holder
by either Landlord or such holder), and Landlord shall diligently commence to
cure such default and shall have thirty (30) days in which to cure any such
default; provided, however, in the event any such default cannot with reasonable
diligence be cured within such thirty day period, Landlord shall have such
additional reasonable period of time as is necessary to cure such default so
long as Landlord commences such cure within such thirty day period and shall
diligently prosecute in good faith such cure to completion. Unless and until
Landlord fails to so cure any default after such notice, Tenant shall not have
any remedy or cause of action by reason thereof. Tenant agrees to accept the
cure by the holder of Landlord's Mortgage of any and all of Landlord's defaults
hereunder should such holder elect, in its sole discretion, to undertake the
cure of such defaults, but Tenant acknowledges that such holder is under no
obligation to do so.
(b) Notwithstanding the provisions of Paragraph 22(a) above, in
the event of a default by Landlord under this Lease which interferes with the
operation of the computers and related equipment in the Data Center, Tenant may,
after written notice to Landlord and Landlord's failure to cure such default
within the time period provided in Paragraph 22(a) above, take such reasonable
steps as Tenant deems necessary to eliminate such interference with the
operation of such computers and related equipment, except that Tenant may not in
connection therewith do anything which affects the structure or operating
systems of the Building. In the event Tenant properly exercises such rights,
Landlord shall reimburse Tenant within thirty (30) days after receipt of an
invoice for all reasonable and actual costs incurred by Tenant in connection
therewith.
23. EMINENT DOMAIN. If all or part of the Premises shall be taken as a
result 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 the physical 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
Premises by written notice to the other within thirty (30) days after such date,
with the termination to be effective ninety (90) days after such written notice;
provided, however, that a condition to the exercise by Tenant of such right to
terminate shall be that the portion of the Premises taken shall be of such
extent and nature as substantially to handicap, impede or impair Tenant's use of
the balance of the Premises. In the event of any taking, Landlord shall be
entitled to any and all compensation, damages, income, rent, awards, or any
interest therein whatsoever which may be paid or made in connection therewith,
and Tenant shall have no claim against Landlord for the value of any unexpired
term of this Lease or otherwise. In the event of a partial taking of the
Premises which does not result in a termination of this Lease, the monthly Base
Rental and Additional Rental thereafter to be paid shall be equitably reduced.
If all of the Building, or so much thereof as to cause the remainder not to be
economically feasible to operate, as determined by Landlord, should be
permanently taken or condemned for any public purpose, Landlord shall have the
option of terminating this Lease by written notice to Tenant within sixty (60)
days from the date of such taking or condemnation. Notwithstanding anything to
the contrary contained in this Paragraph 23, if, during the term of this Lease,
the use or occupancy of
21
any part of the Building or Premises shall be taken or appropriated temporarily
for any public or quasi-public use under any governmental law, ordinance or
regulation, 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 Rental payable hereunder by Tenant during the term of this Lease,
provided that if such taking is for more than 120 days during the last twelve
(12) months of the Lease term, Tenant may terminate this Lease by written notice
to Landlord. 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 Premises during the term of
this Lease, and Landlord shall be entitled to receive that portion of any award
which represents the cost of restoration and compensation for the loss of use or
occupancy of the Premises after the end of the term of this Lease. Landlord
shall provide Tenant with a copy of any notice received by Landlord with respect
to the exercise of such power of eminent domain. Tenant shall have the right to
make a separate claim under such proceeding for the value of the unexpired term
of this Lease.
24. SUBORDINATION.
(a) Except as provided in subparagraph (c) below, this Lease and
all rights of Tenant hereunder are and shall be subject and subordinate at all
times to the lien or security title or interest of any and all underlying deeds
of trust, mortgages and deeds to secure debt or other instrument in the nature
thereof in any amount or amounts whatsoever now or hereafter placed on or
against or affecting the Building or any part thereof or on or against
Landlord's interest or estate therein and to any other instrument encumbering
the fee title of the Building and to any modifications, renewals,
consolidations, extensions or replacements thereof (collectively or singularly,
"Landlord's Mortgage"), all without the necessity of having further instruments
executed on the part of Tenant to effectuate such subordination.
(b) While subparagraph (a) above is self-operative, and no
further instrument of subordination shall be necessary, Tenant shall, in
confirmation of such subordination promptly, upon demand, at any time or times,
execute, acknowledge and deliver to Landlord or a holder of a Landlord's
Mortgage any and all instruments requested by either of them to evidence such
subordination.
(c) Tenant shall promptly, upon demand, at any time or times,
execute, acknowledge and deliver to Landlord or to a holder of Landlord's
Mortgage any and all instruments that may be necessary to make this Lease
superior to the lien or security title or interest of a Landlord's Mortgage.
(d) If a holder of a Landlord's Mortgage shall hereafter succeed
to the right of Landlord under this Lease, whether through possession or
foreclosure action or exercise of private power of sale or delivery of a new
lease or otherwise, Tenant shall, at the option of such holder, attorn to and
recognize such successor as Tenant's landlord under this Lease as of the date of
such holder's succession to Landlord's interest and shall promptly execute,
acknowledge and
22
deliver any instrument that may be necessary to evidence such attornment. Upon
such attornment, this Lease shall continue in full force and effect as a direct
lease between each successor Landlord and Tenant, subject to all of the terms,
covenants and conditions of this Lease.
(e) If Tenant fails at any time to execute, acknowledge and
deliver any of the instruments provided for in this Paragraph 24 within ten (10)
business days after Landlord's notice so to do, Landlord, in addition to the
remedies allowed by Paragraph 19, may execute, acknowledge and deliver any and
all of such instruments as the attorney-in-fact of Tenant and in its name, place
and stead, and Tenant hereby irrevocably appoints Landlord, its successors and
assigns, as such attorney-in-fact, which power of attorney is irrevocable and is
coupled with an interest.
(f) It is acknowledged by the parties that a Subordination,
Attornment and Non-Disturbance Agreement by and among Tenant, Landlord and the
holders of Landlord's Mortgage encumbering the Building as of the date of
execution of this Lease has been executed and delivered contemporaneously with
this Lease. With respect to any Landlord's Mortgage executed and delivered by
Landlord following the date of this Lease, Landlord agrees to obtain from the
holder of any such Landlord's Mortgage an executed subordination,
non-disturbance and attornment agreement in the form customarily used by such
holder.
25. NO MERGER. The voluntary or other surrender of this Lease by Tenant,
or a mutual cancellation hereof or a termination by Landlord pursuant to the
terms of this Lease, shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment to it of any or all such
subleases or subtenancies.
26. SALE. In the event the original Landlord hereunder, or any successor
owner of the Building, shall sell or convey the Building, all liabilities and
obligations on the part of the original Landlord, or such successor owner, under
this Lease accruing thereafter shall terminate, and thereupon all such
liabilities and obligations shall be binding upon the new owner; provided,
however, that if any such new owner shall have been a previous holder of a
Landlord's Mortgage, the liabilities and obligations of such new owner shall be
limited to its obligations under any instruments executed by Tenant and
delivered to such holder of a Landlord's Mortgage described in Paragraph 24.
Tenant shall be bound to any succeeding landlord for all of the terms, covenants
and conditions hereof and shall execute any attornment agreement not in conflict
herewith at the request of any succeeding landlord.
23
27. ESTOPPEL CERTIFICATE. At any time and from time to time designated
by Landlord (but on not less than ten (10) days prior written request by
Landlord), Tenant will execute, acknowledge and deliver to Landlord, promptly
upon request, a certificate certifying (a) that this Lease is unmodified and in
full force and effect (or, if there have been modifications, that this Lease is
in full force and effect, as modified, and stating the date and nature of each
modification), (b) the date, if any, to which Rental and other sums payable
hereunder have been paid, (c) that no notice has been received by Tenant of any
default which has not been cured, except as to defaults specified in said
certificate, and (d) such other matters as may be requested by Landlord. Any
such certificate may be relied upon by Landlord and any and all existing or
prospective purchasers, investors, mortgagees or holders of any deed to secure
debt on the Building or any part thereof and any party to whom any such
certificate is addressed.
28. NO LIGHT, AIR OR VIEW EASEMENT. No easement of light, air or view is
granted by Landlord hereunder, and any diminution or shutting off of light, air
or view by any building or other structure shall in no way affect this Lease or
impose any liability on Landlord.
29. HOLDING OVER. If Tenant remains in possession after expiration of
this Lease, with Landlord's acquiescence and without any distinct written
agreement between Landlord and Tenant, this Lease shall become a month-to-month
periodic tenancy, and there shall be no renewal of this Lease by operation of
law. Such periodic tenancy may be terminated by thirty (30) days written notice
by either party to this Lease to the other party and such termination shall be
effective as of the last day of the calendar month during which said notice
period ends. During the period of any such holding over, all provisions of this
Lease shall be and remain in effect except that the monthly Base Rental shall be
one hundred fifty percent (150%) of the Base Rental payable for the last
calendar month of the term of this Lease, 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. If Tenant remains in possession
after expiration of the term of this Lease, without Landlord's acquiescence or
consent, Tenant shall become a tenant-at-sufferance. This Paragraph 29 will
survive the termination of this Lease, by lapse of time or otherwise.
30. ABANDONMENT. If Tenant shall abandon or surrender the Premises, or
be dispossessed by process of law or otherwise, any personal property belonging
to Tenant and left on the Premises shall be deemed to be abandoned, at the
option of Landlord.
31. SECURITY DEPOSIT.
(a) Tenant has deposited with Landlord the sum specified in the
Basic Lease Information (the "Security Deposit"). In the event the amount of the
Security Deposit required to be on deposit is less than the amount held by
Lender, Lender shall return such excess amount to Tenant. In the event Tenant
expands the Premises, the amount of the Security Deposit shall be increased
proportionately to the amounts specified in the Basic Lease Information. If
Tenant completes an initial public offering of its stock, or has a material
change in its net worth or
24
capitalization, Tenant may request Landlord to change the amount of the required
Security Deposit; provided that any such change in the amount of the Security
Deposit shall be in Landlord's sole discretion. The Security Deposit shall be
held by Landlord as security for the faithful performance by Tenant of all of
the provisions of this Lease to be performed or observed by Tenant. If Tenant
fails to pay Rental or other charges due hereunder, or otherwise defaults with
respect to any provision of this Lease, Landlord may use, apply or retain all or
any portion of the Security Deposit for the payment of any Rental or other
charge in default or for the payment of any other sum to which Landlord may
become obligated by reason of Tenant's default, or to compensate Landlord for
any loss or damage which Landlord may suffer thereby. Such use, application or
retention of the Security Deposit shall not prohibit or limit Landlord's
exercise of any other remedies Landlord may have for Tenant's default. If
Landlord so uses, applies or retains all or any portion of the Security Deposit,
Tenant shall within ten (10) business days after demand therefor deposit cash
with Landlord in an amount sufficient to restore the Security Deposit to the
full amount thereof and Tenant's failure to do so shall be a material breach of
this Lease. Landlord shall not be required to keep the Security Deposit separate
from its general accounts. If Tenant performs all of Tenant's obligations
hereunder, the Security Deposit, or so much thereof as has not theretofore been
applied by Landlord, shall be returned, without payment of interest or other
increment for its use, to Tenant (or, at Landlord's option, to the last
assignee, if any, of Tenant's interest hereunder) upon the later to occur of (i)
the Expiration Date or (ii) the date on which Tenant has performed all of
Tenant's obligations under this Lease including, without limitation, any
remaining obligations of Tenant to pay the adjustment of Additional Rent for the
final calendar year of the term of this Lease pursuant to subparagraph 3(b)(2)
hereinabove. No trust relationship is created herein between Landlord and Tenant
with respect to the Security Deposit.
(b) Tenant may, at its option, provide Landlord a letter of
credit (the "Letter of Credit"), rather than cash, in the amount of the Security
Deposit. Such Letter of Credit must be drawn upon a bank acceptable to Landlord
in form acceptable to Landlord, and provide that Landlord may draw upon such
Letter of Credit upon presentation of a notice that Landlord would have the
right to use the Security Deposit as provided in Paragraph 31(a) of this Lease.
Tenant must provide Landlord a renewal of such Letter of Credit no later than
thirty (30)) days prior to the expiration date of the Letter of Credit, and if
Tenant does not do so Landlord may draw the full amount of the Letter of Credit
and use the same as the Security Deposit as though Tenant had deposited cash in
accordance with Paragraph 31(a) of this Lease.
32. WAIVER. The waiver by Landlord of any agreement, condition or
provision herein contained shall not be deemed to be a waiver of any subsequent
breach of the same or any other agreement, condition or provision herein
contained, nor shall any custom or practice which may grow up between the
parties in the administration of the terms hereof be construed to waive or to
lessen the right of Landlord to insist upon the performance by Tenant in strict
accordance with said terms. The subsequent acceptance of Rental hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any agreement, condition or provision of this Lease, other than the failure of
Tenant to pay the particular increment of Rental
25
so accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such Rental. Landlord may accept a partial payment of
Rental or other sums due hereunder without such constituting an accord and
satisfaction and without prejudice to Landlord's right to demand the balance of
such Rental or other sum notwithstanding any notation on a check or letter
accompanying such partial payment, unless Landlord expressly waives its right to
such balance in writing.
33. NOTICES. All notices and demands which may or are required to be
given by either party to the other hereunder shall be in writing and shall be
deemed to have been fully given when delivered by reputable courier, with
receipt acknowledged or refused, or deposited in the United States mail,
certified, return receipt requested, postage prepaid, and addressed as follows:
to Tenant at the applicable address specified in the Basic Lease Information, or
to such other place as Tenant may from time to time designate in a notice to
Landlord; to Landlord at the address specified in the Basic Lease Information,
or to such other place as Landlord may from time to time designate in a notice
to Tenant; or, in the case of Tenant, delivered to Tenant at the Premises.
Tenant hereby appoints as an agent of Tenant to receive the service of all
dispossessory or distraint proceedings and notices thereunder the person in
charge of or occupying the Premises at the time, and, if no person shall be in
charge of or occupying the same, then such service may be made by attaching the
same on the main entrance of the Premises.
34. COMPLETE AGREEMENT. There are no oral agreements between Landlord
and Tenant affecting this Lease, and this Lease supersedes and cancels any and
all previous negotiations, arrangements, brochures, agreements and
understandings, if any, between Landlord and Tenant or displayed by Landlord to
Tenant with respect to the subject matter of this Lease or the Building. There
are no representations between Landlord and Tenant other than those contained in
this Lease, and any reliance with respect to any representations is solely upon
the representations set forth in this Lease. Any modifications or amendments to
this Lease in order to be effective must be in writing and signed by the party
to be charged.
35. CORPORATE AUTHORITY. If Tenant signs as a corporation, each person
executing this Lease on behalf of Tenant does hereby covenant and warrant that
Tenant is a duly authorized and existing corporation, that Tenant has and is
qualified to do business in Georgia, that the corporation has full right and
authority to enter into this Lease, and that each and both persons signing on
behalf of the corporation were authorized to do so.
36. [INTENTIONALLY DELETED]
37. PERSONALITY OF TENANT. Tenant waives any rights of claim against
Landlord on account of any loss or damage to Tenant's property, the Premises or
its contents, including, but not limited to (a) loss caused by the condition of
the Premises or Building, the condition or operation of or defects in any
equipment, machinery, or utility systems located therein or the act or omission
of any person or persons, except loss caused solely and directly by or due to
the gross negligence or intentional misconduct of Landlord, its authorized
employees or
26
agents acting within the scope of their employment; (b) theft, mysterious
disappearance or loss of any property from the Premises or Building; and (c) any
interference or disturbance by third parties, including but without limitation
other tenants.
38. QUIET ENJOYMENT. Landlord hereby covenants and agrees that if Tenant
shall perform all of the covenants and agreements herein stipulated to be
performed on Tenant's part, subject to the provisions of Paragraph 24 hereof,
Tenant shall at all times during the continuance hereof have the peaceable and
quiet enjoyment and possession of the Premises, but always subject in all
respects to the terms and provisions hereof, ad valorem taxes respecting the
Building and restrictions, easements and other matters now or hereafter of
public record.
39. HAZARDOUS SUBSTANCES.
(a) Tenant hereby covenants that during the term of this Lease
Tenant shall not cause or permit any "Hazardous Substances" (as hereinafter
defined) to be placed, held, located or disposed of in the Premises or any part
thereof and neither the Premises nor any part thereof shall ever be used as a
storage site (whether permanent or temporary) for any Hazardous Substances. For
purposes of this Paragraph 39, "Hazardous Substances" shall mean and include
those elements or compounds which are contained in the list of hazardous
substances adopted by the United States Environmental Protection Agency (EPA) or
the list of toxic pollutants designated by Congress or the EPA 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 hereafter
in effect (collectively "Environmental Laws").
(b) 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 & actual attorneys'
fees, costs of any settlement or judgment and claims of any and every kind
whatsoever paid, incurred or suffered by, or asserted against, Landlord by any
person, entity or governmental agency for, with respect to, or as a direct or
indirect result of, the presence in, or the escape, leakage, spillage,
discharge, emission, or release from, the Premises of any Hazardous Substance
(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, 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
subparagraph 39 (a) above. The provisions of this Paragraph 39 shall survive any
termination or other enforcement of Landlord's remedies under this Lease.
(c) Landlord hereby covenants that during the term of this Lease
Landlord shall not cause any Hazardous Substances to be placed, held, located or
disposed of in the
27
Premises or any part thereof and Landlord shall not cause the Premises nor any
part thereof to ever be used as a storage site (whether permanent or temporary)
for any Hazardous Substances. 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 attorneys'
fees, costs of any settlement or judgment and claims of any and every kind
whatsoever paid, incurred or suffered by, or asserted against, Tenant by any
person, entity or governmental agency for, with respect to, or as a direct or
indirect result of, the presence in, or the escape, leakage, spillage,
discharge, emission, or release from, the Premises of any Hazardous Substance
(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, any
so-called federal, State or local "Superfund" or "Superlien" laws or any other
Environmental Law) resulting solely from the actions of Landlord.
40. FORCE MAJEURE. Notwithstanding any other provision of this Lease,
when a period of time is herein prescribed for any action to be taken by
Landlord, Landlord shall not be liable or responsible for, and there shall be
excluded from the computation for any such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war, laws,
regulations or restrictions or any other causes of any other kind whatsoever
which are beyond the reasonable control of Landlord.
41. MISCELLANEOUS. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. If there be more than one
Tenant, the obligations hereunder imposed upon Tenant shall be joint and
several. This Lease grants Tenant the right to possess and enjoy the use of the
Premises subject to the terms and provisions of the Lease; no estate is conveyed
by this Lease and Tenant has only a usufruct not subject to levy and sale.
Nothing in this Lease is deemed to make or imply that Landlord and Tenant are
partners or joint venturers. Time is of the essence of this Lease and each and
all of its provisions. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for lease,
and it is not effective as a lease or otherwise until execution and delivery by
both Landlord and Tenant. Landlord's obligations and liability with respect to
this Lease shall be limited solely to Landlord's interest in the Building, as
such interest is constituted from time to time, and neither Landlord nor any
officer, director, shareholder nor partner of Landlord shall have any personal
liability whatsoever with respect to this Lease, Tenant agreeing that any claim
by Tenant or judgment of Tenant against Landlord shall be confined to and
satisfied only out of, and only to the extent of, Landlord's interest in the
Building. A condition precedent to Landlord's obligations under this Lease is
the approval of this Lease by all lenders holding a deed to secure debt and
security agreement and related loan documents affecting or imposing a lien or
security title on the Building. The agreements, conditions and provisions herein
contained shall, subject to the provisions as to assignment, inure to the
benefit of and bind the heirs, executors, administrators, successors and assigns
of the parties hereto. Tenant shall not, without the prior written consent of
Landlord, record this Lease or a short-form memorandum hereof in the records of
Xxxxxx County, Georgia. Tenant shall not, without the prior written consent of
Landlord, use
28
the words "SunTrust Plaza" or the name of the Building for any purpose other
than as the address of the business to be conducted by Tenant in the Premises.
If any provision of this Lease shall be determined to be illegal or
unenforceable, such determination shall not affect any other provision of this
Lease and all such other provisions shall remain in full force and effect. The
captions, headings and table of contents contained in this Lease are for
convenience only and do not in any way limit, amplify or modify the terms and
provisions of this Lease. This Lease shall be a contract between Landlord and
Tenant and shall be governed by and construed pursuant to the laws of the State
of Georgia.
42. EXHIBITS; ADDITIONAL PROVISIONS. The Basic Lease Information and the
exhibits and addendum, if any, specified in the Basic Lease Information are
attached to this Lease and by this reference made a part hereof. Additional
provisions are set forth on Exhibit "E" attached hereto and by this reference
made a part hereof. To the extent of any conflict between such additional
provisions and the balance of this Lease, such additional provisions shall
control.
IN WITNESS WHEREOF, the parties have executed this Lease under seal as
of the date first above stated.
LANDLORD:
SUNTRUST PLAZA ASSOCIATES, LLC,
a Georgia limited liability company
By: SUNTRUST BANKS, INC.,
as Managing Partner
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Title: First Vice President
---------------------------
[SEAL]
TENANT:
INTERLAND, INC.,
a Georgia corporation
By: /s/ X.X. Xxxxxxxxx
--------------------------------------
Title: Senior Vice President
--------------------------------
[SEAL]
29
EXHIBIT A
SUNTRUST PLAZA
LEGAL DESCRIPTION
ALL THAT TRACT OR PARCEL OF LAND lying and being in the City of Atlanta in Land
Lots 50 and 51 of the 14th District of Xxxxxx County, Georgia, and being more
particularly described as follows:
BEGINNING at a drill hole in concrete located at the intersection of the
westerly right-of-way line of Peachtree Center Avenue (a 60-foot right-of-way)
and the southeasterly right-of-way line of Peachtree Street (a 60-foot
right-of-way) and running thence along said westerly right-of-way line of
Peachtree Center Avenue the following courses and distances: South 00(Degree)
54' 20" West, a distance of 282.37 feet, to a nail; South 01(Degree) 53' 52"
West, a distance of 10.01 feet, to an iron pin; South 00(Degree) 50' 17" West, a
distance of 120.63 feet, to an iron pin; South 01(Degree) 02' 04" West, a
distance of 93.88 feet, to a point; South 00(Degree) 47' 20" West, a distance of
80.56 feet, to a point located at the intersection of said westerly right-of-way
line of Peachtree Center Avenue and the northerly right-of-way line of Xxxxx
Street (a 60-foot right-of-way); leaving said westerly right-of-way line of
Peachtree Center Avenue and running thence along said northerly right-of-way
line of Xxxxx Street North 88(Degree) 52' 31" West, a distance of 382.27 feet,
to a drill hole in concrete located at the intersection of said northerly
right-of-way line of Xxxxx Street and said southeasterly right-of-way line of
Peachtree Street; thence leaving said northerly right-of-way line of Xxxxx
Street, and running thence along said southeasterly right-of-way line of
Peachtree Street the following courses and distances: North 33(Degree) 32' 44"
East, a distance of 99.10 feet, to a point; North 33(Degree) 30' 14" East, a
distance of 115.77 feet, to a point; North 33(Degree) 21' 17" East, a distance
of 83.46 feet, to a point; North 33(Degree) 17' 00" East, a distance of 20.33
feet, to a point; North 33(Degree) 42' 48" East, a distance of 40.56 feet, to a
point; North 33(Degree) 20' 39" East, a distance of 61.81 feet, to a point;
North 34(Degree) 52' 27" East, a distance of 278.71 feet, to a drill hole in
concrete and THE POINT OF BEGINNING; said tract is more particularly shown as
the tract labeled the "Building Tract" on that certain plat of Boundary Survey
prepared for Citicorp Real Estate, Inc., Peachtree 400 Associates, Ltd.,
Peachtree 500 Associates, L.P., and Ticor Title Insurance Company of California
by Planners and Engineers Collaborative, bearing the seal and certification of
Xxxxxx X. Xxxxx, G.R.L.S. No. 2080, dated December 8, 1986, and last revised
November 22, 1989, which plat is by this reference incorporated herein for all
purposes.
30
EXHIBIT B
FLOOR PLAN
31
EXHIBIT C
INITIAL IMPROVEMENT OF PREMISES
The initial improvement of the Premises Shell shall be conducted in
accordance with the following provisions:
1. DEFINITIONS. For the purposes of this Exhibit and the Lease, the
following defined terms shall have the meanings ascribed thereto in this
Paragraph:
(a) "Approved Plans and Specifications" shall mean the plans and
specifications for the Tenant Improvements prepared by the Space Designer and
approved by Landlord in writing. After approval, the Approved Plans and
Specifications from time to time may be amended by Change Orders and the term
Approved Plans and Specifications shall mean and include all Change Orders to
date.
(b) "Change Orders" shall mean any written change or
modification to the Approved Plans and Specifications which has been approved by
Landlord and Tenant in writing as herein specified.
(c) "Construction Management Fee" shall mean a fee payable by
Tenant to Landlord equal to $50,000.00.
(d) "Contract Price" shall mean the amount payable to the Tenant
Improvement Contractor under the Tenant Improvement Construction Contract for
the installation of Tenant Improvements, which Contract Price shall be subject
to adjustment from time to time as the result of Change Orders.
(e) "Landlord's Contribution" shall mean, and Landlord agrees to
contribute towards payment of the Total Cost, the amount specified in the Basic
Lease Information as the "Landlord's Contribution" times the number of square
feet of Rentable Area in the Premises, except that Landlord's Contribution shall
in no event exceed the Total Cost.
(f) "Premises Shell" shall mean the base shell of the Building
contained within the Premises prior to installation of any Tenant Improvements,
which Premises shall be finished to the state set forth on Exhibit C-1 attached
to this Lease and made a part hereof.
(g) "Space Designer" shall mean the design firm, architects and
engineers employed by Tenant to prepare the plans and specifications for the
Tenant Improvements. Tenant's selection of the Space Designer shall be subject
to the prior written approval of Landlord.
32
(h) "Tenant's Contribution" shall mean and include all of the
Total Cost in excess of the Landlord's Contribution.
(i) "Tenant Improvements" shall mean all improvements made to
the Premises Shell pursuant to the Tenant Improvement Construction Contract and
in accordance with Approved Plans and Specifications.
(j) "Tenant Improvement Construction Contract" shall mean the
written agreement between Landlord and Tenant Improvement Contractor, pursuant
to which Tenant Improvement Contractor shall act as a general contractor and
supervise and direct installation of the Tenant Improvements in accordance with
the Approved Plans and Specifications.
(k) "Tenant Improvement Contractor" shall mean the general
contractor employed by Landlord to construct the Tenant Improvements.
(l) "Total Cost" shall mean the total cost of improving the
Premises Shell, both hard and soft costs, including without limitation design
fees and expenses, the Contract Price (as same may be adjusted by Change
Orders), the Construction Management Fee, keying, signage, final clean-up and
any building lift charges.
2. PLANNING AND COSTING.
(a) Determination of Plans and Specifications. Tenant shall
cause the Space Designer to submit to Landlord final approved plans and
specifications for the Tenant Improvements for the initial 21,186 square feet of
the Premises no later than May 12, 2000 , and for the remaining portion of the
Premises no later than June 6, 2000, which plans and specifications shall
include complete, finished and detailed architectural working drawings and
specifications and mechanical, electrical and plumbing engineering and other
working drawings and specifications in sufficient detail to enable the Tenant
Improvement Contractor to complete the Tenant Improvements. Tenant, and not
Landlord, shall be responsible for assuring that each and every aspect of the
plans and specifications comply and conform with all applicable governmental
laws, codes and regulations, and the approval by Landlord or such plans and
specifications shall not be deemed Landlord's confirmation or agreement that
same so comply or conform with such laws, codes or regulations. At such time as
Landlord deems appropriate following their preliminary approval by Landlord, the
plans and specifications shall be submitted to the tenant improvement general
contractor selected by Landlord and Tenant for a proposed Contract Price. Upon
written approval of such proposed Contract Price and tenant improvement
contractor by both Landlord and Tenant, the proposed Contract Price shall be
deemed to be the Contract Price and the preliminary plans and specifications
shall be deemed to be the Approved Plans and Specifications. In the event the
proposed Contract Price is unacceptable, the preliminary plans and
specifications shall be revised or a different Tenant Improvement Contractor
shall be designated, as Landlord and Tenant shall determine by mutual agreement.
Landlord and Tenant agree that time is of the essence in arriving at Approved
Plans and
33
Specifications and a Contract Price.
(b) Contracting. Upon determination of acceptable Approved Plans
and Specifications and Contract Price, Landlord and Tenant Improvement
Contractor shall enter into the Tenant Improvement Construction Contract and
Landlord shall make the Premises available for installation of the Tenant
Improvements no later than May 12, 2000.
(c) Change Orders. All Change Orders to the Approved Plans and
Specifications shall be approved in writing by both Landlord and Tenant. Prior
to such approval, a proposed Change Order must be submitted to the Space
Designer for review and revision of the Approved Plans and Specifications, if
necessary, and must be submitted to the Tenant Improvement Contractor for a
quotation of the cost of the proposed Change Order. Upon such approval of a
proposed Change Order, the Approved Plans and Specifications shall be deemed
revised to incorporate the Change Order, the Tenant Improvement Construction
Contract shall be deemed amended to incorporate the Change Order, and the
Contract Price shall be deemed adjusted to reflect the cost of the Change Order.
(d) Tenant's Access. Landlord shall provide Tenant and its
representatives access to all contracts, books and records and other documents
related to the completion of the Tenant Improvements.
3. COMPLETION OF IMPROVEMENTS AND RENTAL COMMENCEMENT DATE.
Subject to any "punch list" items, occupancy of the Premises by Tenant
shall be deemed acceptance of the Premises, including without limitation the
Premises Shell and the Tenant Improvements. If Landlord or the Tenant
Improvement Contractor shall be delayed in substantially completing the Tenant
Improvements as a result of any delay or delays attributable to Tenant or Space
Designer, notwithstanding any other provision of this Lease, the commencement of
Rental shall be accelerated by the number of days attributable to such delay or
delays. Delays attributable to Tenant or Space Designer shall include, without
limitation, the following:
(a) Tenant's or Space Designer's failure to submit plans and
specifications or revisions thereof on or before the respective dates referred
to in Paragraph 2 of this Exhibit.
(b) Tenant's failure to approve the proposed Contract Price
within three (3) days after it is submitted;
(c) Tenant's or Space Designer's Change Orders;
(d) Tenant's or Space Designer's request for materials, finishes
or installations
34
that are unique or not readily available (as Landlord shall reasonably determine
within seven (7) business days after Landlord receives the plans identifying
such materials, finishes or installations) upon the recommendations of either
the Tenant Improvement Contractor or the Space Designer);
(e) Tenant's failure to make, or delay in making, the payments
set forth in Paragraph 4 of this Exhibit; and
(f) Interference by Tenant or its employees, agents
representatives, contractors, subcontractors or suppliers with any work being
conducted by Landlord or the Tenant Improvement Contractor or its
subcontractors.
4. PAYMENT OF TOTAL COST.
Periodically (usually on a monthly basis but not necessarily) after
commencement of construction of the Tenant Improvements, Landlord shall submit
to Tenant a billing for that portion of the Total Cost payable to the date of
such billing, which billing shall be based, in part, on the most current draw
request submitted by Tenant Improvement Contractor. Each billing shall include a
pro rata portion of the Construction Management Fee. There shall be a credit
against Tenant's obligation under each billing for Landlord's Contribution which
credit shall be the product of (a) the quotient of Landlord's Contribution
divided by the Total Cost, times (b) the amount of the billing in question.
Tenant's failure to promptly pay any such billing within thirty (30) days after
the receipt of such billing shall be deemed authorization for Landlord to
instruct Tenant Improvement Contractor to stop work under the Tenant Improvement
Construction Contract until such payment is made, together with any accrued
interest and late fees attributable thereto. Tenant's Contribution shall be
deemed Rental under this Lease. In the event the Landlord's Contribution exceeds
the Total Cost, as of the Commencement Date such excess shall be applied as a
credit against Base Rental next coming due and payable.
5. WORK BY TENANT.
All work not within the scope of the normal construction trades employed
in the Building, such as the furnishing and installing of draperies other than
Building standard window covering, furniture, telephone equipment and wiring,
and office equipment, shall be furnished and installed by Tenant's contractors
or at Tenant's expense. Tenant shall adopt a schedule in conformance with the
schedule of the Tenant Improvement Contractor and conduct its work in such a
manner as to maintain harmonious labor relations and as not to interfere
unreasonably with or delay the work of the Tenant Improvement Contractor.
Tenant's contractors, subcontractors and labor shall be acceptable to and
approved by Landlord in writing and shall be subject to the administrative
supervision of the Tenant Improvement Contractor. Contractors and subcontractors
engaged by Tenant shall employ persons and means to insure so far as may be
possible that the progress of work will not be stopped due to interruption on
account of strikes, work stoppage or similar causes for delay. Tenant shall
cause all of Tenant's contractors and
35
subcontractors to maintain liability insurance in a minimum amount of $100,000
each occurrence, $300,000 aggregate, plus necessary xxxxxxx'x compensation
coverage, and to furnish Landlord certificates of insurance therefor. No work
shall commence until these certificates are delivered to Landlord. The insurer
must agree to notify Landlord ten (10) days prior to change or cancellation of
such insurance. All acts of any Tenant's contractor, subcontractor or supplier
are the responsibility of Tenant and any damage of any nature caused by Tenant
or its contractors, subcontractors or suppliers will be governed by Tenant's
indemnity obligations and agreements contained in this Lease. Tenant shall
provide Landlord with written waivers of lien executed by any contractors,
subcontractors and suppliers of Tenant regarding all work and supplies as
required for the authorized scope of work. In event a waiver is not obtained
Tenant will furnish Landlord a bond dissolving any lien upon demand by Landlord.
Within a reasonable period of time following the commencement of construction of
Tenant Improvements, Landlord shall give access and entry to the Premises to
Tenant and its contractors and subcontractors and reasonable opportunity and
time and reasonable use of facilities to enable Tenant to adapt the Premises for
Tenant's use; provided, however, that if such entry is prior to Commencement
Date such entry shall be subject to all of the terms and conditions of the Lease
except the payment of Rental.
6. WINDOW COVERINGS.
Tenant shall be required to use Building standard window coverings on
all windows of the Premises as part of the Tenant Improvements.
36
EXHIBIT C-1
DEFINITION OF SHELL & CORE CONDITION
Base building has been built by Landlord in the following shell condition:
I. BUILDING SHELL & CORE:
A. Drinking Fountain
Four drinking fountains per floor.
B. Lavatories
1. Ladies' and men's rooms finished with ceramic tile
floors and walls, sheetrock ceilings, granite vanities,
fixtures and trim.
2. Accessories: Mirrors, soap dispenser, sanitary napkin
vendor, sanitary napkin disposal, toilet tissue
dispenser, towel dispenser, waste receptacle and seat
cover dispenser.
C. Telephone
Four telephone closets on each floor with a 4' x 8' plywood back
board. Conduits in risers pulled with house cable and fiber
optic cable throughout the building.
D. Electrical
Four electrical closets per floor, complete with service and
distribution panel boards and transformers providing 208/120v to
meet Tenant's anticipated connected load usage of 6.25 xxxxx per
useable square foot for lighting and power.
E. Core
1. Painted hollow metal or stained wood doors including
doors for mechanical, electrical, telephone, janitor's
rooms and stairwells.
2. Sound attenuation consistent around mechanical and
toilet rooms to provide a minimum level of STC37.
3. Exit signs at core as required by code.
4. All pipe sleeves and beams penetrating core walls to be
packed tight.
5. Locking devices and closers for all exit, stairwell and
electrical/telephone doors.
F. Structural
1. The structural requirements of the Premises shall be as
provided in Exhibit G.
2. Concrete floors finished per ACI specification to a
tolerance of 1/4 inch in
37
any 10 feet, and ready to receive improvements and floor
covering.
G. Floor Lobbies
Freight elevator doors and frames primed and painted. Passenger
elevator frames are clad in granite and doors are stainless
steel with etched pattern.
H. Ceiling Height
Space clear of all pipes, ductwork, etc. for nominal, minimum
ceiling height of 9'6" AFF (above finished concrete floor), and
capable of accommodating a standard lighting fixture at most
locations.
I. Fire and Life Safety
1. All requirements in accordance with the applicable
provisions of the National Fire Protection Association,
current edition as adopted by the City.
2. Sprinkler system for temporary protection, consisting of
mains, laterals, heads based on an open area layout
installed according to the Code. Additional sprinkler
heads may be required by Code based upon Tenant's
layout.
3. A fire protection alarm and communication system
(including speakers) for an open floor plan in
compliance with applicable codes, which shall include
facilities for Tenant's installation of additional
speakers if required by Tenant's layout throughout the
floor.
J. Plumbing
1. Access at the core for domestic cold water, drainage and
vent systems.
2. Landlord's plumbing system has the capacity to supply at
Tenant's expense cold water for Tenant's special
installation including separate sinks, separate
lavatories, private showers, executive kitchen,
cafeteria and athletic facilities, if any, dependent on
their location in the building and electrical/HVAC
demand.
K. Window Covering
Landlord shall furnish and install all blinds for all windows in
the Premises.
L. Elevators
All elevators, including two dedicated freight elevators,
installed and functioning properly with cabs finished per
specifications.
M. Ceiling System
Building standard grid system similar to Xxxx Fine-Line.
38
II. TENANT IMPROVEMENTS INCLUDED AS PART OF BASE BUILDING:
A. Ceiling System
The installation of a 2 ft. x 2 ft. modular ceiling grid system
similar to a Xxxx Fine-line. Tenant may remove the ceiling grid
system.
B. HVAC System
The installation includes all primary duct from the fan room on
each floor to both the interior and exterior zones. There are
typically eight (8) interior zones, which include the variable
air volume (VAV) boxes. There are typically twelve (12) exterior
zones which include the powered inductor units (PIU), secondary
duct distribution and installation of diffusers.
C. Plumbing Provisions
Each floor is provided with four (4) locations around the core
where waste and vent risers are available at the janitor closets
and toilet rooms. The sprinkler system is a complete system
including the final hook-up of the sprinkler heads based on an
open plan grid as required by governing codes.
D. Electrical/Telephone Provisions
Electrical circuits for power and lighting will terminate in
junction boxes strategically located throughout the Tenant
spaces. The boxes are installed above the ceiling grid with home
runs back to panels in the electrical rooms. Empty conduit for
telephone runs to various locations in the Tenant spaces is
provided.
III. TENANT IMPROVEMENTS TO BE PROVIDED AS PART OF THE TENANT ALLOWANCE
A. Ceiling System
Purchase and installation of 2 ft. x 2 ft. acoustical ceiling
panels.
B. HVAC System
For the interior zones, the installation of the distribution
system downstream of the VAV boxes will be required, which will
include purchase and installation of duct-work diffusers, return
air grills and mounting of thermostats. For the exterior zones,
the purchase and installation of the return air grills and
mounting of the thermostats will be required.
C. Plumbing System
All cost of Tenant plumbing from points of connections provided
in the core area. Relocation and addition of sprinkler heads due
to Tenant space layout shall be part
39
of the interior finish allowance.
D. Electrical System
Power and lighting distribution from the junction boxes located
above the ceiling grid shall be part of the Tenant Allowance.
This includes purchase and installation of lighting fixtures.
40
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, halls, passages, exits, entrances, shopping malls,
elevators, escalators and stairways of the Building shall not be obstructed by
any of the tenants or used by them for any purpose other than for ingress to and
egress from their respective premises. The halls, passages, exits, entrances,
shopping malls, elevators, escalators and stairways are not for the general
public, and Landlord shall in all cases retain the right to control and prevent
access thereto of all persons whose presence in the judgment of Landlord would
be prejudicial to the safety, character, reputation and interests of the
Building and its tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom any tenant normally deals
in the ordinary course of its business, unless such persons are engaged in
illegal activities. No tenant and no employee or invitee or any tenant shall go
upon the roof of the Building except such roof or portion thereof as may be
contiguous to the Premises of a particular tenant and may be designated in
writing by Landlord as a roof deck or roof garden area.
2. No sign, placard, picture, name, advertisement or notice visible from
the exterior of any tenant's premises shall be inscribed, painted, affixed or
otherwise displayed by any tenant on any part of the Building without the prior
written consent of Landlord. Landlord will adopt and furnish to Tenant general
guidelines relating to signs inside the Building on the office floors. Tenant
agrees to conform to such guidelines, but may request approval of Landlord for
modifications, which approval will not be unreasonably withheld. All approved
signs or lettering on doors shall be printed, painted, affixed or inscribed at
the expense of the Tenant by a person approved by Landlord, which approval will
not be unreasonably withheld. Material visible from outside the Building will
not be permitted.
3. The Premises shall not be used for the storage of merchandise held
for sale to the general public or for lodging. No cooking or related activities
shall be done or permitted by the Tenant on the Premises, except that use by the
Tenant of Underwriters' Laboratory approved equipment for brewing coffee, tea,
hot chocolate and similar beverages shall be permitted, provided that such use
is in accordance with all applicable federal, state, county and city laws,
codes, ordinances, rules and regulations.
4. No tenant shall employ any person or persons other than the cleaning
service company or companies retained by the Landlord for the purpose of
cleaning its premises, unless otherwise agreed to by Landlord in writing. Except
with the written consent of Landlord, no person or persons other than those
approved by Landlord shall be permitted to enter the Building for the purpose of
cleaning the same. No Tenant shall cause any unnecessary labor by reason of such
Tenant's carelessness or indifference in the preservation of good order and
cleanliness. Cleaning service will not be furnished on nights when rooms are
occupied after 9:30 p.m. unless, by agreement in writing, service is extended to
a later hour for specifically designated rooms.
41
5. Landlord will furnish each tenant free of charge with two keys to
each door lock in its premises. Landlord may make a reasonable charge for any
additional keys. No tenant shall have any keys made. No tenant shall alter any
lock or install a new or additional lock or any bolt on any door of its premises
without the prior written consent of Landlord and tenant shall in each such case
furnish Landlord with a key for any such lock. Each tenant, upon the termination
of its tenancy, shall deliver to Landlord all keys to doors in the Building
which shall have been furnished to such tenant.
6. The freight elevator shall be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord in its discretion
shall deem appropriate. The persons employed to move such equipment in or out of
the Building must be acceptable to Landlord. Landlord shall have the right to
prescribe the weight, size and position of all equipment, materials, furniture
or other property brought into the Building. Heavy objects shall, if considered
necessary by Landlord, stand on wood strips of such thickness as is necessary to
properly distribute the weight. Landlord will not be responsible for loss of or
damage to any such property from any cause and all damage done to the Building
by moving or maintaining such property shall be repaired at the expense of
Tenant.
7. No tenant shall use or keep in its premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or any other material
other than limited quantities thereof reasonably necessary for the operation or
maintenance of office equipment, or, without Landlord's prior written approval,
use any method of heating or air conditioning other than that supplied by
Landlord. No tenant shall use or keep or permit to be used or kept any foul or
noxious gas or substance in its premises, or permit or suffer its premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noise, odors or vibrations, or interfere
in any way with other tenants or those having business therein.
8. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and street address of the Building.
9. Landlord reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 7:00 a.m. and at all hours on Saturdays, Sundays and
legal holidays all persons who do not sign in and out on a register in the lobby
of the Building showing the name of the person, the premises visited and the
time of arrival and departure and comply with any and all other security
procedures as Landlord may establish from time to time. All such persons
entering or leaving the Building during such times may be expected to be
questioned by the Building security personnel as to their business in the
Building. Landlord shall in no case be liable for damages for any error with
regard to the admission to or exclusion from the Building of any person. In the
case of invasion, mob, riot, public excitement or other circumstances rendering
such action advisable in the Landlord's opinion, Landlord reserves the right to
prevent access to the Building during the continuance of the same by such action
as Landlord may deem
42
appropriate, including closing doors.
10. The directory of the Building will be provided for the display of
the name and location of the tenants and a reasonable number of the principal
officers and employees of Tenants, and Landlord reserves the right to exclude
any other names therefrom. Any additional name which Tenant shall desire to
place upon said directory must first be approved by Landlord, and, if so
approved, a charge will be made therefor.
11. No curtains, draperies, blinds, shutters, shades, film screens or
other coverings, hanging or decorations shall be attached to, hung or placed in,
or used in connection with any window of the Building without the prior written
consent of Landlord. In any event, with the prior written consent of Landlord,
such items shall be installed on the office side of Landlord's standard window
covering and shall in no way be visible from the exterior of the Building.
12. No tenant shall obtain for use in its premises, ice, drinking water,
food, beverage, towel or other similar services, except at such reasonable hours
and under such reasonable regulations as may be fixed by Landlord.
13. Each tenant shall see that the doors of its premises are closed and
locked and that all water faucets, water apparatus and utilities are shut or
turned off before such tenant or such tenant's employees leave its premises, so
as to prevent waste or damage, and Tenant shall be responsible for any default
or carelessness in this regard and shall make good all injuries sustained by
other tenants or occupants of the Building or Landlord. On multiple-tenancy
floors, all tenants shall keep the doors to the Building corridors closed at all
times except for ingress and egress.
14. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed, no foreign substance of any kind whatsoever shall be thrown therein
and the expense of any breakage, stoppage or damage resulting from the violation
of this rule shall be borne by the tenant who, or whose employees or invitees,
shall have caused it.
15. Except with the prior written consent of Landlord, no tenant shall
sell, or permit the sale at retail, of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise to the general public in its
premises, nor shall any tenant carry on, or permit or allow any employee or
other person to carry on, the business of stenography, typewriting, word
processing or any similar business in or from its premises for the service or
accommodation of occupants of any other portion of the Building, nor shall the
premises of any tenant be used for manufacturing of any kind, or any business or
activity other than that specifically provided for in such tenant's lease.
16. No tenant shall install any radio or television antenna, loudspeaker
or other device on the roof or exterior walls of the Building.
43
17. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or others, any hand trucks except those equipped
with rubber tires and side guards or such other material handling equipment as
Landlord may approve. No other vehicles of any kind shall be brought by any
tenant into the Building or kept in or about its premises.
18. No pets or other animals of any kind (except Seeing Eye Dogs) shall
be brought by any tenant into the Building, or kept or permitted by any tenant
to be kept in or about its premises.
19. Each tenant shall store all its trash and garbage within its
premises. No material shall be placed in the trash boxes or receptacles if such
material is of such nature that it may not be disposed of in the ordinary and
customary manner of removing and disposing of trash and garbage in the City of
Atlanta without being in violation of any law or ordinance governing such
disposal. All garbage and refuse disposal shall be made only through entryways
and elevators provided for such purposes and at such times as Landlord shall
designate.
20. Canvassing, peddling, soliciting, and distribution of handbills or
any other written materials in the Building are prohibited, and each tenant
shall cooperate to prevent the same.
21. The requirements of the tenants will be attended to only upon
application by telephone or in person at the office of the Building. Employees
of Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord.
22. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the
Building.
23. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or part, the terms, covenants,
agreements and conditions of any lease of any premises in the Building.
24. Landlord reserves the right to make such other rules and regulations
as in its judgment may from time to time be needed for the safety, care and
cleanliness of the Building, and for the preservation of good order therein.
44
Exhibit E
ADDITIONAL PROVISIONS
1. RIGHT TO EXTEND. Tenant shall have the option to extend the initial
term of this Lease and the Expiration Date for the Premises, as the Premises may
have been expanded by written agreement, for an additional period of five (5)
years from the expiration of the initial Term (said option being herein referred
to as the "First Extension Option" and said five year period being herein
referred to as the "First Extension Period"), and for a second consecutive
period of five (5) years from the expiration of the First Extension Period (said
option being hereinafter referred to as the "Second Extension Option" and said
five year period being herein referred to as the "Second Extension Period"), on
the terms and conditions set forth below:
(a) Tenant must give Landlord written notice of its exercise of
the First Extension Option on or before one year prior to the expiration of the
initial Term, and of the Second Extension Option on or before one year prior to
the expiration of the First Extension Period. If Tenant fails to exercise either
Extension Option prior to the applicable date, Tenant's right to so extend this
Lease and such Extension Option (and all then remaining Extension Options) shall
thereafter be null and void and of no further force or effect.
(b) In the event that an Event of Default shall exist as of the
time of exercise of any Extension Option or as of the date of the commencement
of any Extension Period, the Extension Option and Tenant's right to extend this
Lease shall be rendered null and void and of no further force or effect.
(c) The terms and conditions of this Lease, as it may have been
amended from time to time, shall prevail during the term of the applicable
Extension Period except that Base Rental for the Premises (including all space
which has become a part of the Premises) shall be adjusted at the commencement
of the applicable Extension Period to the then "Prevailing Market Rate" (as
hereinafter defined). The "Prevailing Market Rate" shall be determined by
Landlord and Tenant by mutual agreement, and, if Landlord and Tenant cannot
agree, the Prevailing Market Rate shall be established in the manner specified
in the balance of this subparagraph. Unless Landlord and Tenant have agreed upon
the Prevailing Market Rate for the applicable Extension Period within thirty
(30) days after the receipt of Tenant's exercise of the Extension Option,
Landlord shall advise Tenant of its determination of what the Prevailing Market
Rate, per square foot of Rentable Area, should be for such Extension Period
("Landlord's Final Rate"). Within twenty (20) days after receipt of Landlord's
Final Rate, Tenant shall advise Landlord, in writing, as to whether or not
Tenant accepts or rejects Landlord's Final Rate. Failure to accept or reject
within said twenty day period shall be deemed acceptance thereof. If Tenant
rejects Landlord's Final Rate, Tenant shall specify in such rejection notice
Tenant's determination of what the Prevailing Market Rate, per square foot of
Rentable Area, should be for such Extension Period ("Tenant's Final Rate"), and
the Prevailing Market Rate, applying the definition in subparagraph (d) below,
for the Extension Period shall then be determined by arbitration in
45
accordance with the provisions of Paragraph 2 below. If the arbitrator has not
determined the Prevailing Market Rate prior to the commencement of the Extension
Period, Tenant shall continue to pay the Base Rental rates in effect pursuant to
this Lease for the last month of the then expiring term and, within thirty (30)
days following the arbitrator's decision, any overpayment or underpayment based
on such previous rates shall be paid by Tenant or Landlord to the other, as
appropriate.
(d) The term "Prevailing Market Rate" shall mean the then
prevailing market rate for base rental for leases comparable to this Lease for
space comparable to the Premises in office buildings comparable to the Building
(including the Building) located in the downtown business district of Atlanta,
Georgia. Such rental shall be the net rental that would be agreed to by a
landlord and tenant, each of whom is willing, but neither of whom is compelled,
to enter into the lease transaction. The Prevailing Market Rate shall be
determined on the assumption that the payment by tenant of the expenses and
charges incurred by the landlord for maintenance and operation (including
utilities) shall be as provided in this Lease. In determining Prevailing Market
Rate, appropriate consideration shall be given to the length of lease term, the
size of the premises being considered, use, definition of rentable area,
quality, age and location of applicable buildings, the quality and
creditworthiness of the tenant, the extent to which any inducements to which
Landlord, at its option, may agree to grant Tenant in connection with the
exercise of the Extension Option is more or less than the inducements (including
rent credits, tenant improvement allowance, moving allowance and similar
inducements) which would be given to a comparable new tenant in a comparable
building with respect to the entire Premises for space which has been previously
improved, and other relevant economic considerations.
2. ARBITRATION.
(a) If Landlord and Tenant have been unable to agree upon the
Prevailing Market Rate pursuant to Paragraph 1 of this Exhibit, the arbitration
procedure shall commence when either party submits the matter to arbitration. No
later than ten (10) days after the arbitration procedure has commenced, each
party shall appoint an arbitrator and notify the other party of such appointment
by identifying the appointee. If either party fails to appoint an arbitrator and
such failure shall continue for five (5) days following written notice of such
failure from the other party hereto, the other appointed arbitrator shall alone
determine the Prevailing Market Rate in accordance with the terms of this
Paragraph 2. Each party hereto agrees to select as its respective appointee a
licensed real estate broker or MAI appraiser who is an individual having no less
than ten (10) years experience with respect to office building ownership,
management and marketing in downtown Atlanta and is familiar with the Building,
which person shall not have been employed or retained during the last three (3)
years as a consultant or otherwise by the party selecting such person. Neither
party may consult directly or indirectly with any arbitrator regarding the
Prevailing Market Rate prior to appointment, or after appointment, outside the
presence of the other party. The arbitration shall be conducted in Atlanta,
Georgia, under the provisions of the commercial arbitration rules of the
American Arbitration Association.
46
(b) No later than twenty (20) days after both arbitrators are
appointed, each party shall separately, but simultaneously, submit in a sealed
envelope to each arbitrator its suggested Prevailing Market Rate of Base Rental
and shall provide a copy of such submission to the other party. The two selected
arbitrators, after reviewing such submissions, shall determine whether
Landlord's or Tenant's estimate of the Prevailing Market Rate is closer to the
actual Prevailing Market Rate for the Premises. If both arbitrators agree that
one of said declared estimates is closer to the actual Prevailing Market Rate,
they shall declare that estimate to be the Prevailing Market Rate, and their
decision shall be final and binding upon the parties.
(c) If the two selected arbitrators are unable to agree on the
Prevailing Market Rate within thirty (30) days after receipt of Landlord's and
Tenant's submitted estimates, then the arbitrators shall so inform the parties.
Unless the parties shall both otherwise then direct, said arbitrators shall
select a third arbitrator no later than ten (10) days after the expiration of
said thirty (30) day period. If no arbitrator is selected within such ten (10)
day period, either party may immediately petition a court with appropriate
jurisdiction to appoint such third arbitrator. The third arbitrator shall have
the qualifications and restrictions set forth in subparagraph 2(a) above, and
shall conduct an arbitration pursuant to the commercial arbitration rules of the
American Arbitration Association. The third arbitrator's decision shall be final
and binding as to whether Landlord's or Tenant's estimate is closer to the
actual Prevailing Market Rate. Such third arbitrator shall make a decision no
later than thirty (30) days after appointment.
(d) Each party shall be responsible for the costs, charges
and/or fees of its respective appointee, and the parties shall share equally in
the costs, charges and/or fees of the third arbitrator. The decision of the
arbitrator(s) may be entered in any court having jurisdiction thereof.
3. RIGHT TO EXPAND.
Provided that, at the time of the exercise of each option and at
the commencement of the term of any Option Space, this Lease is in effect and
there is no outstanding Event of Default under this Lease and subject to and in
accordance with the terms and provisions of this Paragraph 3, Tenant shall have
the option (the "Option Rights") to expand the Premises into the space
(collectively, the "Option Space") and pursuant to the time schedule described
as follows:
(a) Data Center. Landlord hereby grants to Tenant an option to
lease 60,000 square feet of Rentable Area on the 4th Floor of the Building, as
more particularly shown on Exhibit B to the Lease (hereinafter referred to as
the "Data Center" ), which option shall be exercisable only by Tenant delivering
to Landlord written notice of Tenant's election to exercise this option, which
notice must be given prior to six (6) months after the Commencement Date.
(b) Fifth Floor. Landlord hereby grants to Tenant an option to
lease up to an additional 64,000 square feet of Rentable Area on the 5th Floor
of the Building, contiguous to the
47
Premises as more particularly shown on Exhibit B to the Lease (hereinafter
referred to as the "Fifth Floor Expansion Area"), which option shall be
exercisable only by Tenant delivering to Landlord written notice of Tenant's
election to exercise this option, which notice must be given prior to six (6)
months after the Commencement Date.
(c) In the event Tenant has not notified Landlord of its intent
to exercise any of such options on or before the date specified for the exercise
of such option, Tenant shall be deemed to have waived such option and this
Paragraph 3 shall be of no further force or effect whatsoever with respect to
such option. In the event Tenant exercises an option in accordance with the
terms of this Paragraph 3, such Option Space shall become part of the Premises
in accordance with the following:
(i) The annual Base Rental for each increment of Option Space
shall be at the same Base Rental rate per square foot of Rentable Area
thereof as is then, and from time to time thereafter, applicable to the
Premises pursuant to this Lease. Tenant's Percentage Share shall be
increased to reflect the additional Rentable Area being leased by
Tenant.
(ii) The expiration date of the lease term for all of the Option
Space shall be the same as for the Premises, as same may have been or be
extended by any Extension Option.
(iii) Any and all construction of any tenant improvements in
each increment of Option Space shall be substantially in accordance with
the procedures set forth in Exhibit C of this Lease, except that
Landlord shall not be entitled to a Construction Management Fee in
connection with same. Landlord's Contribution and Design Fee Allowance
shall be in the amounts per square foot of Rentable Area as provided for
the Premises.
(iv) Tenant shall cause the Space Designer to submit proposed
plans and specifications for the Option Space to be leased by Tenant
within thirty (30) days following the exercise by Tenant of the Option
Right. The approval, bidding, rebidding and contracting procedure shall
remain the same as Paragraph 2 of Exhibit C.
(v) The commencement date of the term of each increment of
Option Space and the date upon which Base Rental, Tenant's payment of
Operating Expenses and other charges due under this Lease shall begin to
accrue shall be fifteen (15) days after the Delivery Date for such
Option Space.
(vi) The Security Deposit shall be increased for each increment
of Option Space as provided in Paragraph 31 of the Lease.
(vii) With respect to the Data Center, Landlord shall not
provide
48
janitorial or electrical service. Tenant shall contract directly with
the utility provider for electrical service for the Data Center and
shall be responsible for all expenses associated therewith. The
Additional Rental for the Data Center shall be $5.27 per square foot per
year of Rentable Area through the end of December, 2000, and thereafter
the Additional Rental shall include for the janitorial and electrical
expense items only an amount equal to (A) the janitorial and electrical
expense per square foot of Rentable Area of the Building, multiplied by
(B) .178.
(viii) All of the provisions of Exhibit G to the Lease shall be
effective upon the effective exercise of the Option Rights for the Data
Center.
4. [INTENTIONALLY DELETED]
5. FIRST RIGHT OF REFUSAL.
(a) Provided that this Lease is then in effect and Tenant is not
in default under this Lease, prior to the sixth (6th) anniversary of the
Commencement Date, Tenant shall have a continuing first right of refusal (the
"Refusal Right"), in accordance with and subject to the terms and conditions set
forth in the following provisions of this Paragraph 5, with respect to the
following portions of the Building (collectively, the "Refusal Space"): (i) the
Data Center, (ii) that portion of the fourth (4th) Floor of the Building which
is not part of the Data Center, and (iii) the Fifth Floor Expansion Area.
(b) Following the commencement of bona fide negotiations (as
determined in Landlord's reasonable judgment) with a third party for the lease
of any space constituting a portion of the Refusal Space during the time that
the Refusal Right is effective, Landlord shall so notify Tenant in writing and
Tenant shall have ten (10) days from the date of receipt of said notice from
Landlord to notify Landlord in writing that, pursuant to this Paragraph 5, it
elects to lease the space which is the subject of such negotiations. Tenant
shall have no right to exercise a Refusal Right with respect to less than the
amount of Refusal Space indicated in the preceding sentence. If Tenant does not
respond in writing within the stated ten (10) day period, Tenant shall be deemed
to have declined to lease the space at issue pursuant to this Paragraph 5, and,
in such event or if Tenant notifies Landlord in writing within such stated
period that it declines the space, Landlord shall have the unencumbered right to
lease said space to such third party and Tenant shall have no Refusal Right or
Option Rights with respect to such space. If Tenant accepts the space in writing
within the stated period, Tenant shall lease said space on the terms and
conditions set forth in Paragraph 5(c) of this Exhibit.
(c) All Refusal Space into which Tenant elects to expand
pursuant to this Paragraph 5 shall be deemed a part of the Premises and, except
as otherwise set forth to the contrary in this Paragraph (c), shall be governed
by the terms and provisions of the Lease.
49
(i) Notwithstanding any other provision of this Lease, the
annual Base Rental for each increment of Refusal Space shall be at the
same Base Rental rate per square foot of Rentable Area thereof as is
then, and from time to time thereafter, applicable to the Premises
pursuant to this Lease. Tenant's Percentage Share shall be increased to
reflect the additional Rentable Area being leased by Tenant.
(ii) The expiration date of the lease term for all of the
Refusal Space shall be the same as for the Premises, as same may have
been or be extended by any Extension Option.
(iii) Any and all construction of any tenant improvements in
each increment of Refusal Space shall be substantially in accordance
with the procedures set forth in Exhibit C of this Lease, and Landlord
shall be entitled to a Construction Management Fee in connection with
same after the first 180,000 square feet of Rentable Area in the
Premises have been constructed, in an amount equal to $.28 per square
foot of Rentable Area thereof. Notwithstanding the foregoing, (A)
Landlord's Contribution shall be an amount equal to $28.00 per square
feet of Rentable Area and the Design Fee Allowance (as provided in
Paragraph 4 of this Exhibit) shall be $2.00 per square foot of Rentable
Area, in each case multiplied by a fraction (I) having a numerator equal
to the number of complete months remaining in the initial term of the
Lease after the date Tenant commences paying rent for such Refusal
Space, and (II) having a denominator of 120; and (B) the schedule for
submission and agreement to plans and specifications and Contract Price
shall be governed by subparagraph 5(c)(iv). In the event the total cost
of said Tenant Improvements exceeds Landlord's Contribution, said excess
shall be borne solely by Tenant. Any portion of the Landlord's
Contribution which is not used for Tenant Improvements shall be credited
to the Base Rental next coming due and payable on and after the
commencement of the term for such Refusal Space.
(iv) Tenant shall cause the Space Designer to submit proposed
plans and specifications for the Refusal Space to be leased by Tenant
within thirty (30) days following the exercise by Tenant of the Refusal
Right. The approval, bidding, rebidding and contracting procedure shall
remain the same as Paragraph 2 of Exhibit C.
(v) The commencement date of the term of each increment of
Refusal Space and the date upon which Base Rental, Tenant's payment of
Operating Expenses and other charges due under this Lease shall begin to
accrue shall be fifteen (15) days after the Delivery Date for such
Refusal Space.
(vi) With respect to the Data Center and Fifth Floor Expansion
Area, the provisions of Paragraph 3(c)(vi)-(viii) of this Exhibit E
shall apply. The Security Deposit shall be increased for any portion of
the Refusal Space other than the Data Center and Fifth Floor Expansion
Area as provided in Paragraph 31 of the Lease.
6. DESIGN FEE ALLOWANCE. Landlord shall provide Tenant with an allowance
50
for the expense of employing a Space Designer to prepare the plans and
specifications for the Tenant Improvements (the "Design Fee Allowance"), in an
amount equal to $2.00 times the number of square feet of Rentable Area in the
Premises. Such amount shall be paid within thirty (30) days following receipt of
paid invoices from Tenant therefor (but in no event shall such reimbursement be
payable prior to the occupancy by Tenant of the Premises for the purpose of
conducting business therein). In the event the cost of the Space Designer is
less than the Design Fee Allowance, the unused amount shall be added to the
Landlord?s Contribution. In the event the cost of the Space Designer is more
than the Design Fee Allowance, Tenant shall be responsible for such excess cost,
and Landlord shall have no obligation whatever with respect thereto, except that
Tenant may apply a portion of the Landlord's Contribution towards such excess
cost.
7. PARKING.
Pursuant to the terms and conditions set forth in this Xxxxxxxxx 0,
Xxxxxxxx shall make available to Tenant throughout the term of this Lease one
(1) non-reserved parking space per 650 square feet of Rentable Area of the
Premises (as same may be expanded or reduced from time to time) in the parking
garage located at the northeast corner of Peachtree Center Avenue and Xxxxx
Street (the "Garage"). By written notice to Landlord, Tenant may exchange some
of such allocated non-reserved parking spaces for reserved parking spaces in a
number not to exceed one (1) reserved parking space per 2,500 square feet of
Rentable Area of the Premises (as the same may be expanded or reduced from time
to time) and in such location within the Garage as may be determined by
Landlord. Any parking spaces used by Tenant for generator fuel tanks as provided
in Exhibit G hereto shall be deemed reserved parking spaces. The monthly rental
rate for each such parking space shall be at the then prevailing rates being
charged by Landlord or its parking contractor for, respectively, non-reserved
and reserved parking spaces in the Garage, as said prevailing rates shall be
adjusted from time to time by Landlord or its parking contractor, at their
discretion. For each such space which Tenant elects to use by written notice to
Landlord, Tenant shall pay such monthly rentals to Landlord or its parking
contractor (as Landlord may designate to Tenant from time to time), in advance,
on or before the first (1st) day of each calendar month throughout the term of
this Lease, and Tenant and the users of such spaces shall abide by and comply
with any and all rules and regulations promulgated by Landlord or its parking
contractor with respect to the Garage.
8. BROKERAGE.
a. Except for The Staubach Company-Southeast, Inc. ("Staubach"),
Tenant represents and warrants to Landlord that no broker, agent, commission
salesman or other person has represented Tenant in the negotiations for the
procurement of this Lease and of the Premises, and that no commissions, fees or
compensation of any kind are due and payable in connection herewith to any
broker, agent, commission salesman or other person acting for or on behalf of
Tenant. Tenant agrees to indemnify and hold Landlord harmless from all loss,
cost and damage (including reasonable attorneys' fees and court costs) suffered
or incurred by Landlord as a result
51
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; provided, however, that Landlord shall be responsible
for the payment of a commission to Staubach in the amounts set forth in a
separate agreement between Landlord and Staubach and Tenant shall not be
obligated to indemnify or hold Landlord harmless for Landlord's failure to pay
such commission. It is understood and agreed by Landlord and Tenant that
Staubach has represented Tenant, and not Landlord, with respect to this Lease.
b. Landlord represents and warrants that it has been represented
in the negotiation of this Lease by Portman Management Company, that no other
broker, agent or commissioned salesperson has represented Landlord in connection
with this transaction, and that Portman Management Company shall be compensated
by Landlord for its services in connection with this transaction. Landlord
agrees to indemnify and hold Tenant harmless from and against any and all loss,
cost and damage (including reasonable attorneys' fees and court costs) suffered
or incurred by Tenant as a result of a breach by Landlord of the representation
and warranty contained in the immediately preceding sentence or as a result of
Landlord's failure to pay commissions, fees or compensation due to any broker
who represented Landlord, whether or not disclosed.
9. ADA COMPLIANCE. Landlord shall be responsible, at its sole cost and
expense, for causing the common areas of the Building to be in compliance with
Title III of the Americans with Disabilities Act of 1990, as amended as of the
date of this Lease.
10. BUILDING SIGNAGE. During the term of the Lease, Landlord shall
provide to Tenant rights to place signage upon the building equivalent to those
granted to any other tenant of the Building other than SunTrust Bank or its
affiliates.
11. TENANT'S RIGHT OF AUDIT. Tenant shall have the right, exercisable
within sixty (60) days after Landlord delivers to Tenant the statement of
Additional Rental in accordance with Paragraph 3(b)(2) of the Lease (the "Audit
Notice Filing Period"), to audit the books and records of Landlord relating to
the Operating Expenses for such prior calendar year as provided in this
Paragraph 11, provided that Tenant delivers to Landlord written notice of
Tenant's intention to conduct such an audit (the "Audit Notice") within the
Audit Notice Filing Period. Such audit shall be performed by an employee of
Tenant under a mutually acceptable schedule beginning not later than fifteen
(15) days following receipt by Landlord of the Audit Notice, be completed within
a period not to exceed three (3) business days and be conducted in conformity
with generally accepted auditing standards (GAAS) at the sole cost and expense
of Tenant in the offices of Landlord during regular business hours, following
execution by Tenant and Landlord of an agreement to maintain the confidentiality
of Landlord's business records and the results of the audit, as well as to
deliver a copy of the audit report to Landlord prior to the fifteenth (15th) day
following completion of the review of Landlord's records at Landlord's offices.
Tenant shall be barred from making any objection, asserting any claim or
52
filing any cause of action against Landlord with respect to the Additional
Rental for such prior calendar year unless Tenant shall deliver an Audit Notice
to Landlord within the Audit Notice Filing Period. The filing of an Audit Notice
shall not affect Tenant's obligations to pay Additional Rental as otherwise
provided in this Lease.
12. SUNTRUST RELOCATION COST. In order to accommodate Tenant's
use of the 0xx Xxxxx xx xxx Xxxxxxxx, XxxXxxxx Xxxx had to move their MDF Room
from the 4th Floor to the 3rd Floor. Landlord and SunTrust Bank had previously
provided infrastructure on the 4th Floor to be used by SunTrust Bank for such
MDF Room. Tenant shall reimburse Landlord for the cost of providing
substantially similar infrastructure to the 3rd Floor for use by SunTrust Bank's
MDF Room in an amount not to exceed $15,000. Landlord shall deduct the actual
cost from Landlord's Contribution.
53
EXHIBIT F
MEMORANDUM OF COMMENCEMENT OF RENTAL
This Memorandum is made and entered into this ____ day of
_________________, 19____, by and between SUNTRUST PLAZA ASSOCIATES, LLC, a
Georgia limited liability company ("Landlord") and
____________________________________, a ______________________________
("Tenant").
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
(the "Lease") dated _____________________, 2000, with respect to certain
premises known as Suite _______ of the ____________________________ located at
000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, as such demised premises are more
particularly described in the Lease.
WHEREAS, by virtue of Paragraph 2 of the Lease, the payment of Base
Rental and Additional Rental (as such terms are defined in the Lease) is to
commence upon the delivery of the Premises to Tenant (unless such delivery is
delayed by Tenant Delays);
NOW, THEREFORE, for and in consideration of the demised premises and the
mutual covenants expressed in the Lease, it is hereby agreed by Landlord and
Tenant as follows:
1. Pursuant to the terms of Paragraph 2 of the Lease, the Premises
have been delivered to Tenant and the Base Rental and Additional
Rental (as such terms are defined in the Lease) commenced on
____________________, 2000.
2. This Memorandum shall be deemed an amendment to the Lease.
Except as hereinabove provided, all other terms and conditions
of the Lease shall remain unchanged and are in full force and
effect, and are hereby ratified and confirmed by Landlord and
Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have caused their duly
authorized officers or partners to execute this Memorandum the day and year
first above written.
TENANT: LANDLORD:
SUNTRUST PLAZA ASSOCIATES, LLC,
--------------------------------- a Georgia limited liability company
By: By: SUNTRUST BANKS, INC.,
------------------------------ as Sole Manager
Title:
------------------------
By:
-------------------------------------
Title:
----------------------------------
54
EXHIBIT G
TECHNICAL SPECS
-------------------------------------------------------------------------------
GENERAL
-------------------------------------------------------------------------------
Unless Landlord has agreed to pay such expense as provided below, Tenant shall
pay for all work related to the design, engineering, construction, maintenance
and repair of the following items. Landlord must approve in writing all of the
engineering, design, related improvements, installation procedures and
contractors for all of such work. Such installation and the maintenance and
operation of such equipment shall be in accordance with all applicable laws,
ordinances, rules and regulations of all governmental agencies having
jurisdiction, including without limitation all 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 any 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 installation,
maintenance or operation of such equipment or any fuel used or to be used with
such equipment (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, any so-called federal, State or local "Superfund" or "Superlien"
laws or any other Environmental Law). The provisions of this Paragraph shall
survive any termination or other enforcement of Landlord's remedies under this
Lease.
--------------------------------------------------------------------------------
Item LANDLORD'S COMMITMENT
--------------------------------------------------------------------------------
1. FLOOR LOAD: Most of floor has 50 PSF live load and 20 PSF dead load
(or 80 PSF live load only). Ample area exist of 125 PSF.
Reinforcement can be provided anywhere for higher load
capacity up to 300 PSF, which shall be a Tenant expense.
--------------------------------------------------------------------------------
2. ROOF: Roof has 50 PSF live load. Wind Load per 1997 SBC
requirement of 90 mph.
--------------------------------------------------------------------------------
3. SLAB THICKNESS: 5" slab
--------------------------------------------------------------------------------
4. CLEAR HEIGHT: Fourth Floor and Fifth Floor are 14' slab-slab with 9'6"
finished ceiling height.
--------------------------------------------------------------------------------
5. GENERATOR: Three (3) 1750 KW generators will be located on the
south side of the roof of the Building as shown on
Exhibit G-1 hereto.
A day-tank per generator, with City of Atlanta approval,
shall be placed on the roof in a location mutually
acceptable to Landlord and Tenant.
Any expense associated with installing the generators
and day tanks on the roof or other location shall be a
tenant expense.
--------------------------------------------------------------------------------
6. ELECTRICAL: a. Georgia Power shall add (2) 3,000 KVA transformers
to the vault.
b. Tenant to install (2) 4,000 amp or (3) 3,000 amp
480 volt mains in Data Center.
c. Tenant to add step-down transformer and switch
gear in Data Center.
d. Tenant to install up to two (2) 40"x36"x4"
electrical panels in existing electrical and
mechanical rooms at the roof level of the Building
for hookup of Tenant's roof-mounted equipment.
e. All shall be at Tenant's expense except for
Georgia Power's contribution.
f. Tenant, at its sole cost and expense, shall have
the ability to increase the electrical service
supplied to the Premises from 6.25 xxxxx per
useable square foot up to 10 xxxxx per useable
square foot.
-------------------------------------------------------------------------------
7. POWER FEED: GA Power is on the same system. A dual grid system with
multiple feeds from the same substation. All is
underground and concrete encased.
-------------------------------------------------------------------------------
8. LOADING DOCK: Maximum Truck Size: 55'
Dock leveler cap: 25,500 lbs
Corridor Width: 9'
Total Bays: 25
-------------------------------------------------------------------------------
9. SPRINKLERS: a. Fully sprinklered. 65 psi at roof.
b. Landlord will allow the installation of FM 200 or
pre-action systems in Data Center at Tenant's
expense.
--------------------------------------------------------------------------------
56
--------------------------------------------------------------------------------
Item LANDLORD'S COMMITMENT
--------------------------------------------------------------------------------
10. HVAC: a. Tenant may install and place its air-cooled
chiller on the roof of the Building as shown on
Exhibit G-1 hereto. The chiller will be
approximately a 220 ton unit.
b. Tenant may install up to sixty-six (66) 30 ton dry
coolers for Data Center on the roof of the
Building at a location acceptable to Landlord.
c. Tenant may install 4 condensing units on the roof,
each approximately 3' x 3' x 3'.
d. Tenant will be allowed to tie its own tenant water
loop, heat exchanger and pumps into existing
cooling tower loop (at Tenant's cost to tie into)
and utilize, at no additional cost to Tenant,
cooling tower twenty-four hours per day.
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11. COLUMN SPACING: Building can accommodate minimum column spacing of 26'
on center.
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12. ELEVATORS: Passenger cabs: 4,000 lb (6'6X7'6X9')
Service cab: 4,000lb. (8'X6'X9'11")
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13. FIBER ACCESS: Landlord will allow three (3) separate points of entry
into the Building for fiber access. Two of the entry
points are currently existing and the third will be in a
location approved by Landlord.
Landlord will provide a small Fiber Room (at least 8' x
10' in a location to be mutually determined between
Landlord and Tenant in the service area of the Building.
Landlord will pay for the construction of the Fiber
Room. Tenant will pay $12 per square foot per year as
Rental for the Fiber Room.
Landlord will allow Tenant to install up to ten (10)
four inch (4") conduits from the two existing fiber
access locations to the Premises, and five (5) four inch
(4") conduits from a future 3rd fiber provider location
to the Premises.
All conduits will be at Tenant expense.
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14. RISER ACCESS: Landlord will provide access to riser space throughout
the Building for the purpose of serving customers within
the Building.
Landlord will also provide access to riser space for
installation of all of the following conduit runs at
Tenant's expense. Additional rental charges will be
incurred for each square foot of rentable floor area
(other than for riser space within the Premises or
existing core areas in the Building) that is captured
for this purpose from the Atrium level to the roof deck.
a. Generators to Data Center: One riser having up to
12 square feet from Generators to Data Center for
six (6) 4" conduits and nine (9) 1" conduits.
Landlord will provide riser space that is
available in the Building electrical rooms on each
floor
b. Building Electrical Room to Data Center: One riser
having up to 4 square feet from expanded base
building electrical room on level E to Data Center
for six (6) 4" conduits. Landlord will provide
space along ceiling of level D to the NE
stairwell, then vertically behind stairwell to
level O. From level O to Data Center via Building
electrical rooms.
c. Data Center to Roof (Glycol Lines): Two (2)
risers, each having up to 12 square feet (useable)
from Data Center to Building roof for 66 glycol
lines. Landlord will create 2 chases (one each
proposed in NE and NW core areas of the Building),
thus creating additional core area in the Building
from Floors 4 through 6. Rental at the Base Rental
rate for the Premises shall only be payable with
respect to the rentable square feet (based upon a
1.178 load factor) of the chase areas not located
within the Premises.
d. Data Center to 5th Floor: Two (2) risers, each
having up to 12 square feet, from Data Center to
office area on the Fifth Floor. Tenant to propose
location to Landlord for Landlord approval.
e. Fuel Vault to Generators: One riser having up to 4
square feet in a 2hr rated containment from the
fuel vault in the service area of the Building to
the generators on the Building roof, to be located
in a mutually acceptable location. Tenant shall
pay Rental at the Base Rental rate for the
Premises with respect to the rentable square feet
(based upon a 1.178 load factor) of the areas used
to enclose such risers not located within the
Premises.
f. Fiber Room to Premises: Three risers, each having
up to 4 square feet, from the Fiber Room to the
Premises. Tenant would need the ability to run
these in separate routes. Landlord proposes
running conduit in NE and SE stairwells to level
O, then crossing to SE and NE cores and up through
telephone rooms or newly created riser area. In
the event new riser areas need to be created,
Tenant shall pay Rental at the Base Rental rate
for the Premises with respect to the rentable
square feet (based upon a 1.178 load factor) of
the areas used to enclose such risers not located
within the Premises.
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15. SATELLITE DISH/ In the event Tenant desires to place a satellite dish or
TRANSMISSION/ other transmission/ reception facilities on the roof of
RECEPTION the Building, Landlord will use its best efforts to
FACILITIES: provide space, subject to the rights of other tenants of
the Building and in accordance with such reasonable
conditions as Landlord may require.
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16. ROOF RENT: With respect to all equipment and conduits placed by
Tenant on the roof of the Building as permitted by the
Lease, Tenant shall pay Rental in the amount of $6.00
per square foot per year for all space used for such
equipment and conduits.
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Item LANDLORD'S COMMITMENT
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17. DRAWINGS: Landlord will provide to Tenant a CAD of the footprint
of the Building and Premises for space planning. Also,
Landlord will provide to Tenant, when complete, drawings
identifying the locations of fuel tanks, chillers,
generators, primary switches, dry coolers, and fiber
access points.
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18. EQUIPMENT ACCESS: Landlord will allow Tenant to remove glass panels from
the exterior of the Building to hoist/crane required
Tenant equipment into the Premises. Tenant shall replace
all such panels promptly following completion of such
hoisting. Landlord will approve the procedure and
contractor that will be used to do such work.
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19. BASE BUILDING Landlord will at Tenant's expense enlarge the switch
MODIFICATIONS: room in the service area of the Building, as indicated
on Exhibit G-2 hereto, to permit installation of two (2)
new 4160 primary switches with metering compartments to
support the Data Center.
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20. FUEL VAULT The cost of a fuel vault for the generators and all
& required fire suppression equipment, including any
CONTAINMENT required containment facilities, shall be at Tenant's
expense. Tenant shall use the fill area on Level E of
the Building as shown on Exhibit G-2 attached hereto.
Landlord shall provide a containment area in such fill
area for fuel deliveries and filling of fuel tanks at
Landlord's expense, if required by the City of Atlanta
or State of Georgia Landlord will allow Tenant to locate
Tenant's fuel pump and reservoir in a location that is
mutually acceptable and in close proximity to the fill
point of fuel. Landlord will provide a path from the
fill point to the fuel tank locations for piping, which
must be contained within a 2 hour rated enclosure, all
at Tenant's expense.
Tenant can utilize up to six (6) parking spaces on Level
F as shown on Exhibit G-3 for generator tank usage.
Tenant shall pay Rental for all parking spaces used at
the lowest rate being charged generally from time to
time by Landlord or its parking operator for reserved
parking spaces, which rate is currently $130 per month
per space.
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