EXHIBIT 10.28
PROMINENCE IN BUCKHEAD
ATLANTA, GEORGIA
STANDARD FORM OFFICE LEASE
BETWEEN
EOP-BUCKHEAD, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
VIEWLOCITY, INC., A DELAWARE CORPORATION ("TENANT")
TABLE OF CONTENTS
I. BASIC LEASE INFORMATION; DEFINITIONS........................................1
II. LEASE GRANT................................................................4
III. POSSESSION; TERMINATION OPTION FOR LATE DELIVERY..........................4
IV. RENT.......................................................................7
V. USE........................................................................14
VI. SECURITY DEPOSIT..........................................................15
VII. SERVICES TO BE FURNISHED BY LANDLORD.....................................15
VIII. LEASEHOLD IMPROVEMENTS..................................................17
IX. GRAPHICS..................................................................17
X. REPAIRS AND ALTERATIONS....................................................17
XI. USE OF ELECTRICAL SERVICES BY TENANT......................................18
XII. ENTRY BY LANDLORD........................................................19
XIII. ASSIGNMENT AND SUBLETTING...............................................20
XIV. LIENS....................................................................22
XV. INDEMNITY AND WAIVER OF CLAIMS............................................22
XVI. TENANT'S INSURANCE.......................................................23
XVII. SUBROGATION.............................................................24
XVIII. LANDLORD'S INSURANCE...................................................24
XIX. CASUALTY DAMAGE..........................................................24
XX. DEMOLITION................................................................26
XXI. CONDEMNATION.............................................................26
XXII. EVENTS OF DEFAULT.......................................................26
XXIII. REMEDIES...............................................................27
XXIV. LIMITATION OF LIABILITY.................................................29
XXV. NO WAIVER................................................................29
XXVI. EVENT OF BANKRUPTCY.....................................................29
XXVII. WAIVER OF JURY TRIAL...................................................30
XXVIII. RELOCATION............................................................30
XXIX. HOLDING OVER............................................................31
XXX. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.........................31
XXXI. ATTORNEYS' FEES.........................................................32
XXXII. NOTICE.................................................................32
XXXIII. LANDLORD'S LIEN.......................................................32
XXXIV. EXCEPTED RIGHTS........................................................32
XXXV. SURRENDER OF PREMISES...................................................33
XXXVI. MISCELLANEOUS..........................................................33
XXXVII. ENTIRE AGREEMENT......................................................35
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OFFICE LEASE AGREEMENT
THIS
OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as
of the 5th day of November, 1999, by and between EOP-BUCKHEAD, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and VIEWLOCITY, INC., A DELAWARE
CORPORATION ("Tenant").
I. BASIC LEASE INFORMATION; DEFINITIONS.
A. The following are some of the basic lease information and defined
terms used in this Lease.
1. "Additional Base Rental" shall mean Tenant's Pro Rata Share
of Basic Costs and any other sums (exclusive of Base Rental)
that are required to be paid by Tenant to Landlord
hereunder, which sums are deemed to be additional rent under
this Lease. Additional Base Rental and Base Rental are
sometimes collectively referred to herein as "Rent".
2. "Base Rental" shall be payable by Tenant to Landlord in one
hundred twenty (120) monthly installments as follows:
PERIOD IN RSF FOR ANNUAL RATE BASE RENTAL MONTHLY
LEASE TERM BASE RENTAL PER SQUARE FOOT FOR PERIOD BASE RENTAL
-------------------------- ---------------- --------------------- ---------------- ---------------
10/15/99 - 10/31/99 15,000 $ 27.50 $ 18,850.79 $ 18,850.798
11/01/99 - 2/29/00 15,000 $ 27.50 $ 137,500.00 $ 34,375.00
3/01/00 - 5/31/00 19,413 $ 27.50 $ 133,464.39 $ 44,488.13
6/01/00 - 10/31/00 23,827 $ 27.50 $ 273,017.70 $ 54,603.54
11/01/00 - 10/31/01 23,827 $ 28.33 $ 675,018.96 $ 56,251.58
11/01/01 - 10/31/02 23,827 $ 29.18 $ 695,271.84 $ 57,939.32
11/01/02 - 10/31/03 23,827 $ 30.05 $ 716,001.36 $ 59,666.78
11/01/03 - 10/31/04 23,827 $ 30.95 $ 737,445.60 $ 61,453.80
11/01/04 - 10/31/05 23,827 $ 31.88 $ 759,604.80 $ 63,300.40
11/01/05 - 10/31/06 23,827 $ 32.84 $ 782,478.72 $ 65,206.56
11/01/06 - 10/31/07 23,827 $ 33.83 $ 806,067.36 $ 67,172.28
11/01/07 - 10/31/08 23,827 $ 34.84 $ 830,132.64 $ 69,177.72
11/01/08 - 10/31/09 23,827 $ 35.89 $ 855,151.08 $ 71,262.59
3. "Building" shall mean the office building (sometimes
referred to herein as the "Phase I Building") at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇▇▇▇, City
of Atlanta, State of Georgia, commonly known as Prominence
in Buckhead and, at Landlord's option, shall include any
other office building to be constructed or acquired by
Landlord on the parcel of land located adjacent to the land
on which the Phase I Building is to be constructed
(sometimes referred to herein as the "Phase II Building").
4. The "Commencement Date," "Lease Term" and "Termination Date"
shall have the meanings set forth below:
a. The "Lease Term" shall mean a period of one hundred
twenty (120) months and seventeen (17) days commencing
on October 15, 1999 (the "Commencement Date") and,
unless sooner terminated as provided herein, ending on
October 31, 2009 (the "Termination Date").
b. Intentionally Omitted.
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5. The "Premises" shall mean the area to be located on the 17th
floor of the Building, as generally outlined on EXHIBIT A
attached hereto. The Premises shall be known as Suite No.
1700. It is acknowledged by the parties that Landlord has
not named any of the floors in the Building as the "13th"
floor and, therefore, the 12th and 14th floors are actually
contiguous to one another and there is no intervening floor
between them. (If a 13th floor were named, then the Premises
would be located on the 16th floor.)
Landlord and Tenant hereby stipulate and agree that (i) the
"Rentable Area of the Premises shall mean 23,827 square
feet; and (ii) the "Rentable Area of the Building" shall
mean 424,635 square feet. If the Premises being leased to
Tenant hereunder include one or more floors within the
Building in their entirety, the definition of Premises with
respect to such full floor(s) shall include all corridors
and restroom facilities located on such floor(s).
Notwithstanding the foregoing, unless specifically provided
herein to the contrary and except for purposes of
calculating the Rentable Area of the Premises, the Premises
shall not include any telephone closets, electrical closets,
janitorial closets, equipment rooms or similar areas on any
full or partial floor that are used by Landlord for the
operation of the Building. However, if Landlord acquires or
constructs the Phase II Building and elects to include the
Phase II Building within the definition of "Building" as
provided in Section I.A.3. as described above, then the
Rentable Area of the Building and Tenant's Pro Rata Share
shall be appropriately adjusted by Landlord.
6. "Permitted Use" shall mean general office use.
7. "Security Deposit" shall mean $1,212,468.06 in the form of a
letter of credit, as more fully described in Article VI.
8. "Tenant's Pro Rata Share" shall mean 5.6112%, which is the
quotient (expressed as a percentage), derived by dividing
the Rentable Area of Premises by the Rentable Area of the
Building.
9. "Guarantor(s)" NONE.
10. "Notice Addresses" shall mean the following addresses for
Tenant and Landlord, respectively:
Tenant:
On and after the Commencement Date, notices shall be sent to
Tenant at the Premises.
Prior to the Commencement Date, notices shall be sent to
Tenant at the following address:
Viewlocity, Inc.
c/o Frontec Amt
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: _________________________
With a copy of any notices whereby Landlord is asserting a
claim or defense against the Tenant based upon the subject
matter of the notice (as opposed to routine notices
concerning the operation of the Building) to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
First ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
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Landlord:
EOP-Buckhead, L.L.C.
c/o Equity Office Properties Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Building Manager
With a copy to:
Equity Office Properties Trust
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Regional Counsel - Southeast
Payments of Rent only shall be made payable to the order of:
EQUITY OFFICE PROPERTIES
at the following address:
Equity Office Properties
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
B. The following are additional definitions of some of the defined
terms used in the Lease.
1. "Base Year" with respect to Taxes and Expenses shall mean
the calendar year 2000.
a. "Tax Base Amount" shall mean Taxes for the Base Year,
per rentable square foot, multiplied by the Rentable
Area of the Building.
b. "Expense Base Amount" shall mean Expenses for the Base
Year, per rentable square foot, multiplied by the
Rentable Area of the Building. For purposes of this
Section I.B.1. and Article IV, "Expenses" shall mean
all Basic Costs with the exception of Taxes. In
determining the Expense Base Amount under this
subsection I.B.1.(b), Expenses for the Base Year shall
be determined as if the Building had been ninety-five
percent (95%) occupied and Landlord had been supplying
services to ninety-five percent (95%) of the Rentable
Area of the Building during such year. Such
extrapolation of Expenses shall be performed in the
manner described in Section IV.B.
If the Phase II Building is included in the definition of
"Building", as provided in Section I.A.3. as described
above, then, at such time, the Tax Base Amount and the
Expense Base Amount described above shall be adjusted to
include the additional rentable square footage included in
the Phase II Building.
2. "Basic Costs" shall mean all costs and expenses paid or
incurred in connection with operating, maintaining,
repairing, managing and owning the Building and the
Property, as further described in Article IV hereof.
3. "Broker" means, collectively, (a) Insignia/ESG, Inc.
("Tenant's Broker") and (b) Holder Properties, Inc. and the
in-house leasing representatives of Equity Office Properties
(collectively, the "Landlord's Broker").
4. "Building Standard" shall mean the type, grade, brand,
quality and/or quantity of materials Landlord designates
from time to time to be the minimum quality and/or quantity
to be used in the Building.
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5. "Business Day(s)" shall mean Mondays through Fridays
exclusive of the normal business holidays ("Holidays") of
New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day. Landlord, from time to
time during the Lease Term, shall have the right to
designate additional Holidays, provided that such additional
Holidays are commonly recognized by other office buildings
in the area where the Building is located.
6. "Common Areas" shall mean those areas provided for the
common use or benefit of all tenants generally and/or the
public, such as corridors, elevator foyers, common mail
rooms, restrooms, vending areas, lobby areas (whether at
ground level or otherwise) and other similar facilities.
7. "Landlord Work" shall mean the work, if any, that Landlord
is obligated to perform in the Premises pursuant to the Work
Letter Agreement, if any, attached hereto as EXHIBIT D.
8. "Maximum Rate" shall mean the greatest per annum rate of
interest permitted from time to time under applicable law.
9. "Normal Business Hours" for the Building shall mean 8:00
A.M. to 6:00 P.M. Mondays through Fridays, and 8:00 A.M. to
1:00 P.M. on Saturdays, exclusive of Holidays.
10. "Prime Rate" shall mean the per annum interest rate publicly
announced by The First National Bank of Chicago or any
successor thereof from time to time (whether or not charged
in each instance) as its prime or base rate in Chicago,
Illinois.
11. "Property" shall mean the Phase I Building and the parcel(s)
of land on which it is located and, at Landlord's
discretion, the Building garage, if any, and all other
improvements owned by Landlord and serving the Phase I
Building and the tenants thereof and the parcel(s) of land
on which they are located. If the definition of "Building"
also includes the Phase II Building as provided in Section
I.A.3. above, then, at Landlord's option, the "Property"
shall also include the Phase II Building and the parcel(s)
of land on which it is located and, at Landlord's
discretion, the Building garage, if any, and all other
improvements owned by Landlord and serving the Phase II
Building and the tenants thereof and the parcel(s) of land
on which they are located.
12. "Law(s)" means all applicable statutes, codes, ordinances,
orders, rules and regulations of any municipal or
governmental entity.
II. LEASE GRANT.
Subject to and upon the terms herein set forth, Landlord leases to
Tenant and Tenant leases from Landlord the Premises, together with the right, in
common with others, to use the Common Areas.
III. POSSESSION; RENT CREDIT AND TERMINATION OPTION FOR LATE DELIVERY.
A. DETERMINATION OF SUBSTANTIAL COMPLETION DATE; RENT CREDIT AND
TERMINATION OPTION.
1. RENT CREDIT. The Commencement Date shall not be postponed if
the Landlord Work in the Premises is not substantially
completed as of the Commencement Date. (The date that the
Landlord Work in the Premises is substantially completed, as
described in Subsection 4 below, is defined as the
"Substantial Completion Date"). However, if the Substantial
Completion Date has not occurred on or before ninety (90)
days after the later of (a) the date the final Plans (as
defined in EXHIBIT D) have been approved by Landlord and
Tenant and (b) the date that Tenant executes and delivers
this Lease and all prepaid rent and security deposits
required hereunder to Landlord (the date which is 90 days
after the later of the dates described in (a) and (b) above
is referred to herein as the
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"Credit Completion Date"), then, following the Substantial
Completion Date, Tenant shall be entitled to a rent
abatement equal to one day of Base Rental (at the daily rate
payable during the first month of the Lease Term) for every
day in the period beginning on the Credit Completion Date
and ending on the Substantial Completion Date. Landlord and
Tenant acknowledge and agree that the Credit Completion Date
shall be postponed by the number of days the Substantial
Completion Date is delayed due to events of Force Majeure.
Further, if Landlord shall be delayed in substantially
completing the Landlord Work in the Premises as a result of
any Tenant Delays (defined in Subsection 3 below), then, for
purposes of determining the Substantial Completion Date, the
date of substantial completion of the Landlord Work in the
Premises shall be deemed to be the day that said Landlord
Work would have been substantially completed absent any such
Tenant Delay(s).
2. TERMINATION OPTION. If the Substantial Completion Date has
not occurred on or before the date which is 120 days after
the Commencement Date (the "Outside Completion Date"), then
Tenant, as its sole remedy, may terminate this Lease by
giving Landlord written notice of termination on or before
the earlier to occur of: (i) five (5) Business Days after
the Outside Completion Date; and (ii) the Substantial
Completion Date. In such event, this Lease shall be deemed
null and void and of no further force and effect and, so
long as Tenant has not previously defaulted under any of its
obligations under the Work Letter, Landlord shall return the
Security Deposit to Tenant as described in this Lease,
Landlord shall reimburse to Tenant any Base Rental and
Tenant's Pro Rata Share of Taxes and Operating Expenses paid
by Tenant for the period commencing as of the Commencement
Date through the date of termination described above for any
portion of the Premises not occupied by Tenant during such
period, and the parties hereto shall have no further
responsibilities or obligations to each other with respect
to this Lease. Landlord and Tenant acknowledge and agree
that the Outside Completion Date shall be postponed by the
number of days the Substantial Completion Date is delayed
due to events of Force Majeure. Further, if Landlord shall
be delayed in substantially completing the Landlord Work in
the Premises as a result of any Tenant Delays (defined
below), then, for purposes of determining the Substantial
Completion Date, the date of substantial completion of the
Landlord Work in the Premises shall be deemed to be the day
that said Landlord Work would have been substantially
completed absent any such Tenant Delay(s). Notwithstanding
anything herein to the contrary, if Landlord determines that
it will be unable to cause the Substantial Completion Date
to occur by the Outside Completion Date, Landlord shall have
the right to immediately cease its performance of the
Landlord Work and provide Tenant with written notice (the
"Outside Extension Notice") of such inability, which Outside
Extension Notice shall set forth the date on which Landlord
reasonably believes that the Substantial Completion Date
will occur. Upon receipt of the Outside Extension Notice,
Tenant shall have the right to terminate this Lease by
providing written notice of termination to Landlord within
five (5) Business Days after the date of the Outside
Extension Notice. If Tenant does not terminate this Lease
within such five (5) Business Day period, the Outside
Completion Date shall automatically be amended to be the
date set forth in Landlord's Outside Extension Notice.
3. TENANT DELAYS. "Tenant Delay" means any act or omission of
Tenant or its agents, employees, vendors or contractors that
actually delays the substantial completion of the Landlord
Work, including, without limitation: (1) Tenant's failure to
furnish information or approvals within any time period
specified in this Lease, including the failure to prepare or
approve preliminary or final plans by any applicable due
date; (2) Tenant's selection of equipment or materials that
have long lead times after first being informed by Landlord
that the selection may result in a delay; (3) changes
requested or made by Tenant to previously approved plans and
specifications; (4) performance of work in the Premises by
Tenant or Tenant's contractor(s) during the performance of
the Landlord Work; (5) if the performance of any portion of
the Landlord Work depends on the prior or simultaneous
performance of work by Tenant, a delay by
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Tenant or Tenant's contractor(s) in the completion of such
work; or (6) Tenant's failure to comply with the time
periods reflected on the Critical Date Schedule attached
hereto as EXHIBIT G. Landlord shall use reasonable efforts
to notify Tenant of any circumstances of which Landlord is
aware that have caused or may cause a Tenant Delay, so that
Tenant may take whatever action is appropriate to minimize
or prevent such Tenant Delay. The Critical Date Schedule is
included only as a guideline as to the dates that must be
complied with in order for the Landlord Work to be
substantially completed as of the Commencement Date and,
except as specifically described in this Section III.A.,
shall not modify this Section III.A. in any manner.
4. SUBSTANTIAL COMPLETION OF LANDLORD WORK. The Landlord Work
in the Premises shall be deemed to be substantially
completed on the later of (i) the date that Landlord
reasonably determines that all Landlord's Work in the
Premises has been performed (or would have been performed
absent any Tenant Delays), other than any details of
construction, mechanical adjustment or any other matter, the
noncompletion of which does not materially interfere with
Tenant's use of the Premises or (ii) the date Landlord
receives all governmental approvals which are required to
obtain a temporary or permanent certificate of occupancy for
the Premises from the local governmental authority (or would
have been received absent any Tenant Delays). Tenant's right
to terminate this Lease as described above shall be Tenant's
sole remedy and shall constitute full settlement of all
claims that Tenant might otherwise have against Landlord by
reason of the Substantial Completion Date not occurring on
or before the Outside Completion Date.
B. By taking possession of the Premises, Tenant is deemed to have
accepted the Premises and agreed that the Premises is in good
order and satisfactory condition, with no representation or
warranty by Landlord as to the condition of the Premises or the
Building or suitability thereof for Tenant's use. Notwithstanding
the foregoing, Tenant's acceptance of the Premises shall be
subject to Landlord's obligation to correct portions of the
Landlord Work as set forth on a construction punch list prepared
by Landlord and Tenant in accordance with the terms hereof.
Within fifteen (15) days after the substantial completion of the
Landlord Work in the Premises, Landlord and Tenant shall together
conduct an inspection of such portion of the Premises and prepare
a "punch list" setting forth any portions of the Landlord Work
that are not in conformity with the Landlord Work as required by
the terms of this Lease. Notwithstanding the foregoing, at the
request of Landlord, such construction punch list shall be
mutually prepared by Landlord and Tenant prior to the date on
which Tenant first begins to move its furniture, equipment or
other personal property into the Premises. Landlord, as part of
the Landlord Work, shall use good faith efforts to correct all
such items within a reasonable time following the completion of
the punch list. Notwithstanding anything contained herein to the
contrary, Tenant shall have eleven (11) months from the
completion of Landlord Work in the Premises in which to discover
and notify Landlord of any latent defects in Landlord's Work in
such portion of the Premises. Landlord shall be responsible for
the correction of any latent defects with respect to which it
received timely notice from Tenant.
C. Notwithstanding anything to the contrary contained in the Lease,
Landlord shall not be obligated to tender possession of any
portion of any other space leased by Tenant from time to time
hereunder (exclusive of the initial Premises) that, on the date
possession is to be delivered, is occupied by a tenant or other
occupant or that is subject to the rights of any other tenant or
occupant, nor shall Landlord have any other obligations to Tenant
under this Lease with respect to such space until the date
Landlord: (1) recaptures such space from such existing tenant or
occupant; and (2) regains the legal right to possession thereof.
This Lease shall not be affected by any such failure to deliver
possession and Tenant shall have no claim for damages against
Landlord as a result thereof, all of which are hereby waived and
released by Tenant. The Commencement Date and Termination Date
shall be determined as provided in Section III.A. above.
D. If Tenant takes possession of the Premises prior to the
Commencement Date for any purpose (including for purposes of
installing furniture or equipment or conducting business
operations therein), such possession shall be subject to all
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the terms and conditions of the Lease and Tenant shall pay
Additional Base Rental (but not Base Rental) for such portion of
the Premises to Landlord for each day of occupancy prior to the
Commencement Date. Tenant shall, however, be liable for the cost
of any services (e.g. electricity, HVAC, freight elevators) that
are provided to Tenant or the Premises during the period of
Tenant's possession prior to the Commencement Date. Nothing
herein shall be construed as granting Tenant the right to take
possession of any portion of the Premises prior to the
Commencement Date, whether for construction, fixturing or any
other purpose, without the prior consent of Landlord.
IV. RENT.
A. During each calendar year, or portion thereof, falling within the
Lease Term, Tenant shall pay to Landlord as Additional Base
Rental hereunder the sum of (1) Tenant's Pro Rata Share of the
amount, if any, by which Taxes (hereinafter defined) for the
applicable calendar year exceed the Tax Base Amount plus (2)
Tenant's Pro Rata Share of the amount, if any, by which Expenses
for the applicable calendar year exceed the Expense Base Amount.
Tenant's Pro Rata Share of increases in Taxes and Tenant's Pro
Rata Share of increases in Expenses shall be computed separate
and independent of each other prior to being added together to
determine the "Excess". In the event that Taxes and/or Expenses,
as the case may be, in any calendar year decrease below the
amount of the Tax Base Amount or the Expense Base Amount, as
applicable, Tenant's Pro Rata Share of Taxes and/or Tenant's Pro
Rata Share of Expenses, as the case may be, for such calendar
year shall be deemed to be $0, it being understood that Tenant
shall not be entitled to any credit or offset if Taxes decrease
below the Tax Base Amount or if Expenses decrease below the
Expense Base Amount. Prior to January 1 of the calendar year
immediately following the Base Year, and prior to January 1 of
each subsequent calendar year during the Lease Term, or as soon
thereafter as practical, Landlord shall make a good faith
estimate of the Excess for the applicable calendar year and
Tenant's Pro Rata Share thereof. On or before the first day of
each month during such calendar year, Tenant shall pay to
Landlord, as Additional Base Rental, a monthly installment equal
to one-twelfth of Tenant's Pro Rata Share of Landlord's estimate
of the Excess. Landlord shall have the right from time to time
during any such calendar year to revise the estimate of Basic
Costs and the Excess for such year and provide Tenant with a
revised statement therefor, and thereafter the amount Tenant
shall pay each month shall be based upon such revised estimate.
If Landlord does not provide Tenant with an estimate of the Basic
Costs and the Excess by January 1 of any calendar year, Tenant
shall continue to pay a monthly installment based on the previous
year's estimate until such time as Landlord provides Tenant with
an estimate of Basic Costs and the Excess for the current year.
Upon receipt of such current year's estimate, an adjustment shall
be made for any month during the current year with respect to
which Tenant paid monthly installments of Additional Base Rental
based on the previous year's estimate. Tenant shall pay Landlord
for any underpayment within thirty (30) days after demand. Any
overpayment shall, at Landlord's option, be refunded to Tenant
within thirty (30) days or credited against the next installments
of Base Rental and Additional Base Rental due for the months
immediately following the furnishing of such estimate. Any
amounts paid by Tenant based on any estimate shall be subject to
adjustment pursuant to the immediately following paragraph when
actual Basic Costs are determined for such calendar year.
As soon as is practical following the end of each calendar year
during the Lease Term, Landlord shall furnish to Tenant a
statement of Landlord's actual Basic Costs and the actual Excess
for the previous calendar year. If, however, Landlord fails to
furnish Tenant a statement of actual Basic Costs for a given
calendar year within twelve (12) months after the end of said
calendar year and such failure continues for an additional sixty
(60) days after Landlord's receipt of a written request from
Tenant that such statement of actual Basic Costs should be
furnished (the "Request for Statement of Basic Costs"), and
provided the Request for Statement of Basic Costs contains a
statement that Landlord's failure to furnish such statement may
prejudice Landlord's right to collect any underpayment of Basic
Costs from Tenant as described in Section IV.A. of the Lease,
then Landlord shall be deemed to have waived any rights to
recover any underpayment of Basic Costs from Tenant applicable to
said calendar year
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(except to the extent such underpayment is attributable to a
default by Tenant in its obligation to make estimated payments of
Basic Costs). Further, in no event shall the foregoing provision
describing the time period during which Landlord is to deliver
the statement of actual Basic Costs in any manner limit or
otherwise prejudice Landlord's right to modify such statement of
actual costs after such time period if new, additional or
different information relating to such statement of actual costs
is discovered or otherwise determined.
If the estimated Excess actually paid by Tenant for the prior
year is in excess of Tenant's actual Pro Rata Share of the Excess
for such prior year, then Landlord shall apply such overpayment
against Base Rental and Additional Base Rental due or to become
due hereunder, provided if the Lease Term expires prior to the
determination of such overpayment, Landlord shall refund such
overpayment to Tenant within thirty (30) days after first
deducting the amount of any Rent due hereunder. Likewise, Tenant
shall pay to Landlord, within ten (10) days after demand, any
underpayment with respect to the prior year, whether or not the
Lease has terminated prior to receipt by Tenant of a statement
for such underpayment, it being understood that this clause shall
survive the expiration of the Lease.
B. Basic Costs shall mean Taxes and all costs and expenses paid or
incurred in each calendar year in connection with operating,
maintaining, repairing, managing the Building and the Property,
including, but not limited to, the following:
1. All labor costs for all persons performing services required
or utilized in connection with the operation, repair,
replacement and maintenance of and control of access to the
Building and the Property, including but not limited to
amounts incurred for wages, salaries and other compensation
for services, payroll, social security, unemployment and
other similar taxes, workers' compensation insurance,
uniforms, training, disability benefits, pensions,
hospitalization, retirement plans, group insurance or any
other similar or like expenses or benefits.
2. All management fees (not to exceed, an a per annum basis, 5%
of the gross receipts for the Building), the cost of
equipping and maintaining a management office at the
Building, accounting services, legal fees not attributable
to leasing and collection activity, and all other
administrative costs relating to the Building and the
Property. If management services are not provided by a third
party, Landlord shall be entitled to a management fee
comparable to that due and payable to third parties provided
Landlord or management companies owned by, or management
divisions of, Landlord perform actual management services of
a comparable nature and type as normally would be performed
by third parties.
3. All rental and/or purchase costs of materials, supplies,
tools and equipment used in the operation, repair,
replacement (other than replacements deemed to be a capital
improvement under generally accepted accounting principles,
in which event Section IV.B.11 below shall control with
respect to such item) and maintenance and the control of
access to the Building and the Property.
4. All amounts charged to Landlord by contractors and/or
suppliers for services, replacement parts, components,
materials, equipment and supplies furnished in connection
with the operation, repair, maintenance, replacement of and
control of access to any part of the Building, or the
Property generally, including the heating, air conditioning,
ventilating, plumbing, electrical, elevator and other
systems and equipment.
5. All premiums and deductibles paid by Landlord for fire and
extended coverage insurance, earthquake and extended
coverage insurance, liability and extended coverage
insurance, rental loss insurance, elevator insurance, boiler
insurance and other insurance customarily carried from time
to time by landlords of comparable office buildings in the
Buckhead area of Atlanta, Georgia or required to be carried
by Landlord's Mortgagee.
8
6. Charges for water, gas, steam and sewer, but excluding those
charges for which Landlord is otherwise reimbursed by
tenants, and charges for Electrical Costs. For purposes
hereof, the term "Electrical Costs" shall mean: (i) all
charges paid by Landlord for electricity supplied to the
Building, Property and Premises, regardless of whether such
charges are characterized as distribution charges,
transmission charges, generation charges, public good
charges, disconnection charges, competitive transaction
charges, stranded cost recoveries or otherwise; (ii) except
to the extent otherwise included in Basic Costs, any costs
incurred in connection with the energy management program
for the Building, Property and Premises, including any costs
incurred for the replacement of lights and ballasts and the
purchase and installation of sensors and other equipment
that saves energy; and (iii) if and to the extent permitted
by law, a reasonable fee for the services provided by
Landlord in connection with the selection of utility
companies and the negotiation and administration of
contracts for the generation of electricity. Notwithstanding
the foregoing, Electrical Costs shall be adjusted as
follows: (a) any amounts received by Landlord as
reimbursement for above standard electrical consumption
shall be deducted from Electrical Costs, (b) the cost of
electricity incurred in providing overtime HVAC to specific
tenants shall be deducted from Electrical Costs, it being
agreed that the electrical component of overtime HVAC Costs
shall be calculated as a reasonable percentage of the total
HVAC costs charged to such tenants, and (c) if Tenant is
billed directly for the cost of electricity to the Premises
as a separate charge in addition to Base Rental and Basic
Costs, the cost of electricity to individual tenant spaces
in the Building shall be deducted from Electrical Costs.
7. "Taxes", which for purposes hereof, shall mean: (a) all real
estate taxes and assessments on the Property, the Building
or the Premises, and taxes and assessments levied in
substitution or supplementation in whole or in part of such
taxes, (b) all personal property taxes for the Building's
personal property, including license expenses, (C) all taxes
imposed on services of Landlord's agents and employees, (d)
all other taxes, fees or assessments now or hereafter levied
by any governmental authority on the Property, the Building
or its contents or on the operation and use thereof (except
as relate to specific tenants), and (e) all costs and fees
incurred in connection with seeking reductions in or refunds
in Taxes including, without limitation, any costs incurred
by Landlord to challenge the tax valuation of the Building,
but excluding income taxes. For the purpose of determining
real estate taxes and assessments for any given calendar
year, the amount to be included in Taxes for such year shall
be as follows: (1) with respect to any special assessment
that is payable in installments, Taxes for such year shall
include the amount of the installment (and any interest) due
and payable during such year; and (2) with respect to all
other real estate taxes, Taxes for such year shall, at
Landlord's election, include either the amount accrued,
assessed or otherwise imposed for such year or the amount
due and payable for such year, provided that Landlord's
election shall be applied consistently throughout the Lease
Term. If a reduction in Taxes is obtained for any year of
the Lease Term during which Tenant paid its Pro Rata Share
of Basic Costs, then Basic Costs for such year will be
retroactively adjusted and Landlord shall provide Tenant
with a credit, if any, based on such adjustment. Likewise,
if a reduction is subsequently obtained for Taxes for the
Base Year (if Tenant's Pro Rata Share is based upon
increases in Basic Costs over a Base Year), Basic Costs for
the Base Year shall be restated and the Excess for all
subsequent years recomputed. Tenant shall pay to Landlord
Tenant's Pro Rata Share of any such increase in the Excess
within thirty (30) days after Tenant's receipt of a
statement therefor from Landlord.
8. All landscape expenses and costs of maintaining, repairing,
resurfacing and striping of the parking areas and garages of
the Property, if any.
9. Cost of all maintenance service agreements, including those
for equipment, alarm service, window cleaning, venetian
blind cleaning,
9
janitorial services, pest control, uniform supply, plant
maintenance, landscaping, and any parking equipment.
10. Cost of all other repairs, replacements and general
maintenance of the Property and Building neither specified
above nor directly billed to tenants.
11. The amortized cost of capital improvements made to the
Building or the Property which are: (a) primarily for the
purpose of reducing operating expense costs or otherwise
improving the operating efficiency of the Property or
Building; or (b) required to comply with any laws, rules or
regulations of any governmental authority. The cost of such
capital improvements shall be amortized over a period of
five (5) years and shall, at Landlord's option, include
interest at a rate that is reasonably equivalent to the
interest rate that Landlord would be required to pay to
finance the cost of the capital improvement in question as
of the date such capital improvement is performed, provided
if the payback period for any capital improvement is less
than five (5) years, Landlord may amortize the cost of such
capital improvement over the payback period. Notwithstanding
the foregoing, the portion of the annual amortized costs to
be included in Basic Costs in any calendar year with respect
to a capital improvement which is intended to reduce
expenses or improve the operating efficiency of the Property
or Building shall equal the lesser of: a) such annual
amortized costs; and b) the actual annual amortized
reduction in expenses for that portion of the amortization
period of the capital improvement which falls within the
Lease Term.
12. Any other expense or charge of any nature whatsoever which,
in accordance with general industry practice with respect to
the operation of a first-class office building in Atlanta,
Georgia, would be construed as an operating expense.
In addition, if Landlord incurs any Taxes or costs and expenses
in connection with the operation, maintenance, repair, or
management of the Building and one or more other buildings, such
costs and expenses shall be equitably prorated between the
Building and such other buildings and the Building's equitable
share thereof shall be included in Basic Costs. Notwithstanding
the foregoing, for purposes of computing Tenant's Pro Rata Share
of Basic Costs, the Controllable Basic Costs (hereinafter
defined) shall not increase by more than six percent (6%) per
calendar year on a compounding basis over the course of the Lease
Term. In other words, Controllable Basic Costs for the first
calendar year after the Base Year shall not exceed one hundred
six percent (106%) of the Controllable Basic Costs for the Base
Year. Controllable Basic Costs for the second calendar year after
the Base Year shall not exceed one hundred six percent (106%) of
the limit on Controllable Basic Costs for the first calendar year
after the Base Year, etc. By way of illustration, if Controllable
Basic Costs were $10.00 per rentable square for the Base Year,
then Controllable Basic Costs for the first (1st) calendar year
following the Base Year shall not exceed $10.60 per rentable
square foot, and Controllable Basic Costs for the second calendar
year following the Base Year shall not exceed $11.24 per rentable
square foot. "Controllable Basic Costs" shall mean all Basic
Costs exclusive of the cost of Taxes, insurance, utilities and
capital improvements.
Basic Costs shall not include the cost of capital improvements
(except as set forth above and as distinguished from replacement
parts or components purchased and installed in the ordinary
course), depreciation, interest (except as provided above with
respect to the amortization of capital improvements), lease
commissions, and principal payments on mortgage and other
non-operating debts of Landlord.
Basic Costs shall also exclude the following:
a. Repairs or other work occasioned by (i) fire,
windstorm, or other casualty of the type which Landlord
has insured (to the extent that Landlord has received
insurance proceeds and provided that the amount of any
deductible paid by Landlord shall be included in Basic
Costs), or (ii) the exercise of the right of eminent
domain (to
10
the extent that such repairs or other work are covered
by the proceeds of the award, if any, received by
Landlord).
b. Leasing and brokerage commissions, attorney's fees,
costs, and disbursements and other expenses incurred in
connection with negotiation of leases with prospective
tenants.
c. Rental concessions granted to specific tenants and
expenses incurred in renovating or otherwise improving
or decorating, painting, or redecorating space for
specific tenants, other than ordinary repairs and
maintenance provided to all tenants.
d. Overhead and profit increment paid to subsidiaries or
other affiliates of Landlord for services (including
management services and the fees paid in connection
therewith) on or to the Property, Building and\or
Premises to the extent only that the costs of such
services exceed the competitive cost for such services
rendered by persons or entities of similar skill,
competence and experience.
e. Advertising and promotional expenditures.
f. Any penalties or liquidated damages that Landlord pays
to Tenant under this Lease or to any other tenants in
the Building under their respective leases.
g. Attorney's fees, costs and other expenses incurred in
connection with disputes with tenants or other
occupants of the Building or incurred to enforce the
obligations of tenants under leases of portions of the
Building.
h. The cost or expense of any services or benefits
provided to other tenants in the Building and not
provided or available to Tenant.
i. The cost of operating any commercial concession which
is operated by Landlord in the Building, including
without limitation, any compensation paid to clerks,
attendants or other persons operating such commercial
concessions on behalf of Landlord, but only to the
extent revenues from any such commercial concessions
exceed such costs and compensation.
j. Any fines or penalties incurred as a result of
violation by Landlord of any law, order, rule or
regulation of any governmental authority.
k. Expenses incurred in connection with the initial
construction of the Building, Garage and Common Areas.
l. All costs of purchasing, repairing and replacing major
sculptures, paintings or other major works or objects
of art (as opposed to decorations purchased or leased
by Landlord for display in the Common Areas of the
Building).
m. To the extent that parking revenues exceed parking
expenses, the costs incurred in owning, operating,
maintaining and repairing any underground or
above-ground parking garage and/or any other parking
facilities associated with the Building and Common
Areas.
n. Salaries or fringe benefits of (i) employees above the
grade of building manager or general manager, and (ii)
employees whose time is not spent directly and solely
in the operation of the Property, provided that if any
employee performs services in connection with the
Building and other buildings, costs associated with
such employee may be proportionately included in Basic
Costs based on the percentage of time such employee
spends in connection with the operation, maintenance
and management of the Building.
11
o. Any expenses for which Landlord has received actual
reimbursement, whether by insurance or otherwise (other
than through Basic Costs).
p. Any costs, fines or penalties incurred due to
violations by Landlord of any environmental law in
effect (and as enforced) as of the Commencement Date
(except where such costs, fines or penalties are
incurred by Landlord for violations of any such law,
order, rule or regulation that is ultimately determined
to be invalid or inapplicable); and any cost or expense
related to removal, cleaning, abatement or remediation
of "hazardous materials" in or about the Building,
Common Area or Property, including, without limitation,
hazardous substances in the ground water or soil,
except to the extent such removal, cleaning, abatement
or remediation is related to the general repair and
maintenance of the Building, Common Area or Property.
q. All costs associated with the operation of the business
of the ownership or entity which constitutes "Landlord"
(as distinguished from the costs of operating,
maintaining, repairing and managing the Building)
including, but not limited to, Landlord's general
corporate overhead and general administrative expenses.
r. Costs incurred by Landlord in connection with the
correction of defects in design and original
construction of the Building, Garage and Common Areas.
s. Any fines, costs, penalties or interest resulting from
the adjudicated negligence or adjudicated willful
misconduct of the Landlord or its agents, contractors,
or employees.
t. Ground lease rental.
u. Landlord's charitable and political contributions.
v. Costs incurred (less costs of recovery) for any items
to the extent covered by a manufacturer's,
materialman's, vendor's or contractor's warranty (a
"Warranty") which are paid by such manufacturer,
materialman, vendor or contractor (Landlord shall use
reasonable efforts to pursue a warranty claim for items
covered by a Warranty unless Landlord determines in
good faith that such action would not be in the best
interest of the Building).
w. The cost of statements and reports rendered to
shareholders of Landlord.
x. All bad debt loss, rent loss, or reserves for bad debt
or rent loss;
y. To the extent any services (on a per square foot basis)
are provided to a tenant or occupant of the Building at
a level that is materially greater than the level at
which such services are available to Tenant, the cost
of providing such services at a level that is over and
above the level available to Tenant shall be excluded
from Basic Costs.
If the Building is not at least ninety-five percent (95%)
occupied during any calendar year of the Lease Term or if
Landlord is not supplying services to at least ninety-five
percent (95%) of the total Rentable Area of the Building at any
time during any calendar year of the Lease Term, actual Basic
Costs for purposes hereof shall be determined as if the Building
had been ninety-five percent (95%) occupied and Landlord had been
supplying services to ninety-five percent (95%) of the Rentable
Area of the Building during such year. If Tenant pays for its Pro
Rata Share of Basic Costs based on increases over a "Base Year"
and Basic Costs for any calendar year during the Lease Term are
determined as provided in the foregoing sentence, Basic Costs for
such Base Year shall also be determined as if the Building had
been ninety-five percent (95%) occupied and Landlord had been
supplying services to ninety-five percent
12
(95%) of the Rentable Area of the Building. Any necessary
extrapolation of Basic Costs under this Article shall be
performed by adjusting the cost of those components of Basic
Costs that are impacted by changes in the occupancy of the
Building (including, at Landlord's option, Taxes) to the cost
that would have been incurred if the Building had been
ninety-five percent (95%) occupied and Landlord had been
supplying services to ninety-five percent (95%) of the Rentable
Area of the Building. In addition, if Tenant's Pro Rata Share of
Basic Costs is determined based upon increases over a Base Year
and Basic Costs for the Base Year include exit and disconnection
fees, stranded cost charges and/or competitive transaction
charges, such fees and charges may, at Landlord's option, be
imputed as a Basic Cost for subsequent years in which such fees
and charges are not incurred. In no event, however, shall the
amount of such imputed fees and charges exceed the actual amount
of exit and disconnection fees, stranded cost charges and/or
competitive transaction charges that were actually included in
Basic Costs for the Base Year.
C. Tenant, within ninety (90) days after receiving Landlord's
statement of actual Basic Costs for a particular calendar year,
shall have the right to provide Landlord with written notice (the
"Review Notice") of its intent to review Landlord's books and
records relating to the Basic Costs for such calendar year.
Within a reasonable time after receipt of a timely Review Notice,
Landlord shall make such books and records available to Tenant or
Tenant's agent for its review. If any records are maintained at a
location other than the office of the Building, Tenant may either
inspect the records at such other location or pay for the
reasonable cost of copying and shipping the records. If Tenant
retains an agent to review Landlord's books and records for any
calendar year, such agent must be CPA firm licensed to do
business in the state in which the Building is located. Tenant
shall be solely responsible for any and all costs, expenses and
fees incurred by Tenant or Tenant's agent in connection with such
review. If Tenant elects to review Landlord's books and records,
within thirty (30) days after such books and records are made
available to Tenant, Tenant shall have the right to give Landlord
written notice stating in reasonable detail any objection to
Landlord's statement of actual Basic Costs for such calendar
year. If Tenant fails to give Landlord written notice of
objection within such thirty (30) day period or fails to provide
Landlord with a Review Notice within the ninety (90) day period
provided above, Tenant shall be deemed to have approved
Landlord's statement of Basic Costs in all respects and shall
thereafter be barred from raising any claims with respect
thereto. Notwithstanding the foregoing, if a subsequent review of
Expenses in accordance with the terms hereof discloses that a
particular material item of Expenses has been overstated by more
than five percent (5%) and there is a reasonable basis to assume
such item was similarly overstated in any of the three (3)
immediately previous calendar years, Landlord shall allow Tenant
to perform a review of Landlord's books and records with respect
to such particular item(s) for any of the three (3) immediately
previous calendar years in which Tenant elected not to review
Landlord's books and records. Upon Landlord's receipt of a timely
objection notice from Tenant, Landlord and Tenant shall work
together in good faith to resolve the discrepancy between
Landlord's statement and Tenant's review. If Landlord and Tenant
determine that Basic Costs for the calendar year in question are
less than reported, Landlord shall provide Tenant with a credit
against future Base Rental and Additional Base Rental in the
amount of any overpayment by Tenant. Likewise, if Landlord and
Tenant determine that Basic Costs for the calendar year in
question are greater than reported, Tenant shall forthwith pay to
Landlord the amount of underpayment by Tenant. In addition, if
Landlord and Tenant determine that Basic Costs for the Building
for the year in question were less than stated by more than five
percent (5%), Landlord, within thirty (30) days after its receipt
of paid invoices therefor from Tenant, shall reimburse Tenant for
any reasonable amounts paid by Tenant to third parties in
connection with such review by Tenant. Any information obtained
by Tenant pursuant to the provisions of this Section shall be
treated as confidential. Notwithstanding anything herein to the
contrary, Tenant shall not be permitted to examine Landlord's
books and records or to dispute any statement of Basic Costs
unless Tenant has paid to Landlord the amount due as shown on
Landlord's statement of actual Basic Costs, said payment being a
condition precedent to Tenant's right to examine Landlord's books
and records.
13
D. Tenant covenants and agrees to pay to Landlord during the Lease
Term, without any setoff or deduction whatsoever, the full amount
of all Base Rental and Additional Base Rental due hereunder. In
addition, Tenant shall pay and be liable for, as additional rent,
all rental, sales and use taxes or other similar taxes, if any,
levied or imposed by any city, state, county or other
governmental body having authority, such payments to be in
addition to all other payments required to be paid to Landlord by
Tenant under the terms and conditions of this Lease. Any such
payments shall be paid concurrently with the payments of the Rent
on which the tax is based. The Base Rental, Tenant's Pro Rata
Share of Basic Costs and any recurring monthly charges due
hereunder shall be due and payable in advance on the first day of
each calendar month during the Lease Term without demand,
provided that the installment of Base Rental for the first full
calendar month of the Lease Term shall be payable upon the
execution of this Lease by Tenant. All other items of Rent shall
be due and payable by Tenant on or before ten (10) Business Days
after Tenant's receipt of billing by Landlord. If the Lease Term
commences on a day other than the first day of a calendar month
or terminates on a day other than the last day of a calendar
month, then the monthly Base Rental and Tenant's Pro Rata Share
of Basic Costs for such month shall be prorated for the number of
days in such month occurring within the Lease Term based on a
fraction, the numerator of which is the number of days of the
Lease Term that fell within such calendar month and the
denominator of which is thirty (30). All such payments shall be
by a good and sufficient check. No payment by Tenant or receipt
or acceptance by Landlord of a lesser amount than the correct
amount of Rent due under this Lease shall be deemed to be other
than a payment on account of the earliest Rent due hereunder, nor
shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance or
pursue any other available remedy. The acceptance by Landlord of
any Rent on a date after the due date of such payment shall not
be construed to be a waiver of Landlord's right to declare a
default for any other late payment. Tenant's covenant to pay Rent
shall be independent of every other covenant set forth in this
Lease.
E. If Tenant fails to pay any installment of Rent when due and
payable hereunder, a service fee equal to five percent (5%) of
such unpaid amount will be due and payable immediately by Tenant
to Landlord (provided Tenant shall be entitled to a grace period
of five (5) days after notice from Landlord with respect to the
first two (2) late payments in any calendar year). Landlord shall
also be entitled to interest on late payments of Rent as
described in Section XXIII.D. below.
V. USE.
The Premises shall be used for the Permitted Use and for no other
purpose. Tenant agrees not to use or permit the use of the Premises for any
purpose which is illegal, dangerous to life, limb or property or which, in
Landlord's reasonable opinion, creates a nuisance or which would increase the
cost of insurance coverage with respect to the Building. Tenant shall conduct
its business and control its agents, servants, contractors, employees,
customers, licensees, and invitees in such a manner as not to unreasonably
interfere with, annoy or disturb other tenants, or in any way interfere with
Landlord in the management and operation of the Building. Tenant will maintain
the Premises in a clean and healthful condition, and comply with all laws,
ordinances, orders, rules and regulations of any governmental entity with
reference to the operation of Tenant's business and to the use, condition,
configuration or occupancy of the Premises, including without limitation, the
Americans with Disabilities Act (collectively referred to as "Laws"). Except to
the extent properly included in Basic Costs, Landlord shall be responsible for
the cost of correcting any violations of Title III of the Americans with
Disabilities Act (ADA) with respect to the Common Areas of the Building.
Notwithstanding the foregoing, Landlord shall have the right to contest any
alleged violation in good faith, including, without limitation, the right to
apply for and obtain a waiver or deferment of compliance, the right to assert
any and all defenses allowed by law and the right to appeal any decisions,
judgments or rulings to the fullest extent permitted by law. Landlord, after the
exhaustion of any and all rights to appeal or contest, will make all repairs,
additions, alterations or improvements necessary to comply with the terms of any
final order or judgment. Tenant, within ten (10) days after receipt thereof,
shall provide Landlord with copies of any notices it receives with respect to a
violation or alleged violation of any Laws. Tenant will comply with the rules
and regulations of the Building attached hereto as EXHIBIT B and such other
rules and regulations adopted and altered by Landlord from time to time and will
cause all of its agents, servants, contractors, employees,
14
customers, licensees and invitees to do so. All changes to such rules and
regulations will be reasonable and shall be sent by Landlord to Tenant in
writing. The rules and regulations shall be generally applicable, and generally
applied in the same manner, to all tenants of the Building.
VI. SECURITY DEPOSIT.
A. As security for the performance of Tenant's obligations under
this Lease, upon the execution of this Lease by Tenant, Tenant
shall deliver to Landlord a Security Deposit consisting of an
irrevocable letter of credit (the "Letter of Credit"), which
Letter of Credit shall: (a) be in the amount of $1,212,468.06;
(b) be issued on the form attached hereto as EXHIBIT F; (c) name
EOP-Buckhead, L.L.C. or such other designee of Landlord, as
requested by Landlord, as its beneficiary; (d) be drawn on an
FDIC insured financial institution satisfactory to the Landlord;
and (e) expire no earlier than sixty (60) days after the
Termination Date of this Lease.
B. The Security Deposit shall be delivered to Landlord and shall be
held by Landlord without liability for interest (unless required
by law). The Security Deposit is not an advance payment of Rent
or a measure of Tenant's liability for damages. Landlord may,
from time to time, without prejudice to any other remedy, use all
or a portion of the Security Deposit to satisfy past due Rent or
to cure any uncured default by Tenant. If Landlord uses the
Security Deposit, Tenant shall on demand restore the Security
Deposit to its original amount. Landlord shall return any
unapplied portion of the Security Deposit to Tenant within 45
days after the later to occur of: (1) the determination of
Tenant's Pro Rata Share of any Excess (defined in Section IV.A.)
for the final year of the Lease Term; (2) the date Tenant
surrenders possession of the Premises to Landlord in accordance
with this Lease; or (3) the Termination Date. If Landlord
transfers its interest in the Premises, Landlord may assign the
Security Deposit to the transferee and, following the assignment,
Landlord shall have no further liability for the return of the
Security Deposit. Landlord shall not be required to keep the
Security Deposit separate from its other accounts.
C. Notwithstanding anything herein to the contrary, provided Tenant
is not in default under this Lease as of the effective date of
any reduction of the Letter of Credit, Tenant shall have the
right to reduce the amount of the Letter of Credit by $242,493.61
effective as of the 3rd anniversary of the Commencement Date and
each subsequent annual anniversary of the Commencement Date
thereafter. Landlord may prevent any such reduction by delivering
written notice to the issuer of the Letter of Credit that Tenant
is in default under the Lease. Notwithstanding the foregoing,
effective as of the 3rd anniversary of the Commencement Date,
upon written request of Tenant and provided that Tenant is not in
default under this Lease as of such date, Landlord agrees to
review Tenant's then current financial statements and to discuss
with Tenant the feasibility of reducing or eliminating the
Security Deposit in its entirety or accelerating the reduction
schedule described above. However, although Landlord agrees to
discuss such matter with Tenant in good faith, any decision of
Landlord with respect to such matter shall be made in Landlord's
sole discretion.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord, as part of Basic Costs (except as otherwise provided),
agrees to furnish Tenant the following services:
1. Water for use in the lavatories on the floor(s) on which the
Premises is located. If Tenant desires water in the Premises
for any approved reason, including a private lavatory or
kitchen, cold water shall be supplied, at Tenant's sole cost
and expense, from the Building water main through a line and
fixtures installed at Tenant's sole cost and expense with
the prior reasonable consent of Landlord. If Tenant desires
hot water in the Premises, Tenant, at its sole cost and
expense and subject to the prior reasonable consent of
Landlord, shall install a hot water heater in the Premises.
Tenant shall be solely responsible for maintenance and
repair of any such hot water heater.
15
2. Central heat and air conditioning in season during Normal
Business Hours, at such temperatures and in such amounts as
are appropriate to maintain the standards reflected on the
HVAC specifications reflected in the "Mechanical System for
Building" portion of EXHIBIT D-1 attached hereto, or as
required by governmental authority. If Tenant requires
central heat, ventilation or air conditioning at hours other
than Normal Business Hours, such central heat, ventilation
or air conditioning shall be furnished only upon the oral
request of an authorized representative of Tenant (i.e.
pre-authorized by Tenant in writing) or the written request
of Tenant delivered to Landlord at the office of the
Building prior to 12:00 P.M. on the date excess usage is
required if such date is a Business Day, or (ii) 12:00 P.M.
on the immediately preceding Business Day if such excess
usage is desired on a Saturday, Sunday or Holiday. Tenant
shall pay Landlord, as Additional Base Rental, the entire
cost of additional service as such costs are determined by
Landlord from time to time. As of the date hereof,
Landlord's charge for after hours heating and air
conditioning service is $30.00 per hour.
3. Maintenance and repair of all Common Areas in a first class
manner deemed by Landlord to be standard for buildings of
similar class, size, age and location in the Buckhead area
of Atlanta, Georgia.
4. Janitor service on Business Days; provided, however, if
Tenant's use, floor covering or other improvements require
special services, Tenant shall pay the additional cost
reasonably attributable thereto as Additional Base Rental.
5. Passenger elevator service in common with other tenants of
the Building, provided that, subject to Force Majeure, at
least one (1) passenger elevator servicing the Premises
shall be available for the use of Tenant, twenty-four (24)
hours a day, 365/6 days per year.
6. Electricity to the Premises for general office use, in
accordance with and subject to the terms and conditions set
forth in Article XI of this Lease.
7. Access to the Building for Tenant and its employees 24-hours
a day, seven (7) days a week, subject to the terms of this
Lease and such security or monitoring systems as Landlord
may reasonably impose, including, without limitation, sign
in procedures and/or presentation of identification cards.
8. Security to the Building consistent with a first-class
office building in the Buckhead area in Atlanta, Georgia,
which may be provided through a security system involving
any one or a combination of cameras, monitoring devices or
guards, sign-in or identification procedures or other
comparable system.
B. Landlord's failure to furnish, or any interruption or termination
of, services due to the application of Laws (defined in Section
I.B.12 above), the failure of any equipment, the performance of
repairs, improvements or alterations, or the occurrence of any
event or cause beyond the reasonable control of Landlord (a
"Service Failure") shall not render Landlord liable to Tenant,
constitute a constructive eviction of Tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to
fulfill any covenant or agreement. However, if the Premises, or a
material portion of the Premises, is made untenantable for a
period in excess of 3 consecutive Business Days as a result of
the Service Failure, then Tenant, as its sole remedy, shall be
entitled to receive an abatement of Rent payable hereunder during
the period beginning on the 4th consecutive Business Day of the
Service Failure and ending on the day the service has been
restored. If the entire Premises has not been rendered
untenantable by the Service Failure, the amount of abatement that
Tenant is entitled to receive shall be prorated based upon the
percentage of the Premises rendered untenantable and not used by
Tenant.
C. Tenant expressly acknowledges that if Landlord, from time to
time, elects to provide security services, Landlord shall not be
deemed to have warranted the efficiency of any security
personnel, service, procedures or equipment and
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Landlord shall not be liable in any manner for the failure of any
such security personnel, services, procedures or equipment to
prevent or control, or apprehend anyone suspected of personal
injury, property damage or any criminal conduct in, on or around
the Property.
VIII. LEASEHOLD IMPROVEMENTS.
Any trade fixtures, unattached and movable equipment or furniture, or
other personalty brought into the Premises by Tenant ("Tenant's Property") shall
be owned and insured by Tenant. Tenant shall remove all such Tenant's Property
from the Premises in accordance with the terms of Article XXXV hereof. Any and
all alterations, additions and improvements to the Premises, including any
built-in furniture (collectively, "Leasehold Improvements") shall be owned and
insured by Landlord and shall remain upon the Premises, all without
compensation, allowance or credit to Tenant. Landlord may, nonetheless, at any
time prior to the expiration or earlier termination of this Lease or Tenant's
right to possession, require Tenant to remove any Leasehold Improvements
performed by or for the benefit of Tenant and all electronic, phone and data
cabling as are designated by Landlord (the "Required Removables") at Tenant's
sole cost. In the event that Landlord so elects, Tenant shall remove such
Required Removables within ten (10) Business Days after notice from Landlord,
provided that in no event shall Tenant be required to remove such Required
Removables prior to the expiration or earlier termination of this Lease or
Tenant's right to possession. In addition to Tenant's obligation to remove the
Required Removables, Tenant shall repair any damage caused by such removal and
perform such other work as is reasonably necessary to restore the Premises to a
"move in" condition. If Tenant fails to remove any specified Required Removables
or to perform any required repairs and restoration within the time period
specified above, Landlord, at Tenant's sole cost and expense, may remove, store,
sell and/or dispose of the Required Removables and perform such required repairs
and restoration work. Tenant, within fifteen (15) days after demand from
Landlord, shall reimburse Landlord for any and all reasonable costs incurred by
Landlord in connection with the Required Removables. Notwithstanding the
foregoing, Tenant may request in writing at the time it submits its plans and
specifications for an alteration, addition or improvement, that Landlord advise
Tenant whether Landlord will require Tenant to remove, at the termination of
this Lease or Tenant's right to possession hereunder, such alteration, addition
or improvement, or any particular portion thereof and Landlord shall advise
Tenant within twenty (20) days after receipt of Tenant's request as to whether
Landlord will require removal; provided, however, Landlord shall have the right
to require Tenant to remove any vault, stairway, raised floor or structural
alterations installed in the Premises, regardless of whether Landlord timely
notified Tenant that it would require such removal.
IX. GRAPHICS.
Landlord shall provide and install, at Tenant's cost (subject to the
Allowance), any suite numbers and Tenant identification on the exterior of the
Premises using the standard graphics for the Building. Tenant shall not be
permitted to install any signs or other identification without Landlord's prior
written consent, which consent shall not be unreasonably withheld. Landlord
shall include Tenant's name, at Tenant's cost, in the Building lobby directory.
X. REPAIRS AND ALTERATIONS.
A. Except to the extent such obligations are imposed upon Landlord
hereunder, Tenant, at its sole cost and expense, shall perform
all maintenance and repairs to the Premises as are necessary to
keep the same in good condition and repair throughout the entire
Lease Term, reasonable wear and tear excepted. Tenant's repair
and maintenance obligations with respect to the Premises shall
include, without limitation, any necessary repairs with respect
to: (1) any carpet or other floor covering, (2) any interior
partitions, (3) any doors, (4) the interior side of any demising
walls, (5) any telephone and computer cabling that serves
Tenant's equipment exclusively, (6) any supplemental air
conditioning units, private showers and kitchens, including any
plumbing in connection therewith, and similar facilities serving
Tenant exclusively, and (7) any alterations, additions or
improvements performed by contractors retained by Tenant. All
such work shall be performed in accordance with section X.B.
below and the rules, policies and procedures reasonably enacted
by Landlord from time to time for the performance of work in the
Building. If Tenant fails to make any necessary repairs to the
Premises within ten (10) days after notice from Landlord
(provided that no prior notice shall be required in the event of
an emergency), Landlord may, at its option, make such repairs,
and Tenant shall pay the cost thereof to the Landlord on demand
as Additional Base Rental, together with an
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administrative charge in an amount equal to ten percent (10%) of
the cost of such repairs. Notwithstanding the foregoing, if the
repair to be performed by Tenant cannot reasonably be completed
within ten (10) days by Tenant or Landlord, Landlord shall not
exercise its right to make such repair on Tenant's behalf so long
as Tenant commences such repair within ten (10) days after notice
from Landlord and is diligently pursuing the same to completion.
Landlord shall, at its expense (except as included in Basic
Costs), keep and maintain in good repair and working order and
make all repairs to and perform necessary maintenance upon: (a)
the roof, gutters, downspouts, if any, and all other structural
elements of the Building; and (b) all mechanical, electrical and
plumbing systems that serve the Building in general; and (c) the
Building facilities common to all tenants including, but not
limited to, the ceilings, walls and floors in the Common Areas.
B. Tenant shall not make or allow to be made any alterations,
additions or improvements to the Premises without first obtaining
the written consent of Landlord in each such instance which
consent shall not be unreasonably withheld, conditioned or
delayed. Prior to commencing any such work and as a condition to
obtaining Landlord's consent, Tenant must furnish Landlord with
plans and specifications reasonably acceptable to Landlord (which
Landlord shall approve or disapprove within five (5) Business
Days after receipt from Tenant provided Tenant includes a written
reminder notice that Landlord is to respond within five (5)
Business Days); names and addresses of contractors reasonably
acceptable to Landlord; copies of contracts; necessary permits
and approvals; evidence of contractor's and subcontractor's
insurance in accordance with Article XVI section B. hereof; and
payment bond or other security, all in form and amount
satisfactory to Landlord. All such improvements, alterations or
additions shall be constructed in a good and workmanlike manner
using Building Standard materials or other new materials of equal
or greater quality. Landlord, to the extent reasonably necessary
to avoid any disruption to the tenants and occupants of the
Building, shall have the right to designate the time when any
such alterations, additions and improvements may be performed and
to otherwise designate reasonable rules, regulations and
procedures for the performance of work in the Building. Upon
completion, Tenant shall furnish "as-built" plans, contractor's
affidavits and full and final waivers of lien and receipted bills
covering all labor and materials. All improvements, alterations
and additions shall comply with all insurance requirements,
codes, ordinances, laws and regulations, including without
limitation, the Americans with Disabilities Act. Tenant shall
reimburse Landlord upon demand as Additional Base Rental for all
reasonable sums, if any, expended by Landlord for third party
examination of the architectural, mechanical, electric and
plumbing plans for any alterations, additions or improvements. In
addition, if Landlord so requests, Landlord shall be entitled to
oversee the construction of any alterations, additions or
improvements that may affect the structure of the Building or any
of the mechanical, electrical, plumbing or life safety systems of
the Building. In the event Landlord elects to oversee such work,
Landlord shall be entitled to receive a fee for such oversight in
an amount equal to ten percent (10%) of the cost of such
alterations, additions or improvements. Landlord's approval of
Tenant's plans and specifications for any work performed for or
on behalf of Tenant shall not be deemed to be a representation by
Landlord that such plans and specifications comply with
applicable insurance requirements, building codes, ordinances,
laws or regulations or that the alterations, additions and
improvements constructed in accordance with such plans and
specifications will be adequate for Tenant's use.
XI. USE OF ELECTRICAL SERVICES BY TENANT.
A. All electricity used by Tenant in the Premises shall, at
Landlord's option, be paid for by Tenant either: (1) through
inclusion in Base Rental and Basic Costs (except as provided in
Section XI.B. below with respect to excess usage); or (2) by a
separate charge billed directly to Tenant by Landlord and payable
by Tenant as Additional Base Rental within ten (10) days after
billing; or (3) by a separate charge or charges billed by the
utility company(ies) providing electrical service and payable by
Tenant directly to such utility company(ies). It is understood
that electrical service to the Premises may be furnished by one
or more companies providing electrical generation, transmission
and/or distribution services and that the cost of electricity may
be billed as a single charge or
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divided into and billed in a variety of categories such as
distribution charges, transmission charges, generation charges,
public good charges or other similar categories. Landlord shall
have the exclusive right to select the company(ies) providing
electrical service to the Building, Premises and Property, to
aggregate the electrical service for the Building, Premises and
Property with other buildings, to purchase electricity for the
Building, Premises and Property through a broker and/or buyers
group and to change the providers and/or manner of purchasing
electricity from time to time. Landlord shall be entitled to
receive a reasonable fee (if permitted by law) for the services
provided by Landlord in connection with the selection of utility
companies and the negotiation and administration of contracts for
the generation of electricity.
B. Tenant's use of electrical service in the Premises shall not
exceed, either in voltage, rated capacity, use beyond Normal
Business Hours or overall load, that which Landlord deems to be
standard for the Building. For purposes hereof, the electrical
"standard" for the Building is: (a) a design load of two (2)
▇▇▇▇▇ per square foot of net usable floor area for all Building
Standard overhead lighting located within the Premises which
requires a voltage of 480/277 volts; and (b) a connected load of
five (5) ▇▇▇▇▇ per square foot of net usable area for all
equipment located and operated within the Premises which requires
a voltage of 120/208 volts single phase or less, it being
understood that electricity required to operate the base building
HVAC system is not included within or deducted from such five (5)
▇▇▇▇▇ per square foot. If Tenant shall consume (or request that
it be allowed to consume) electrical service in excess of that
deemed by Landlord to be standard for the Building, Landlord may
refuse to consent to such excess usage or may condition its
consent to such excess usage upon such conditions as Landlord
reasonably elects (including the installation of utility service
upgrades, submeters, air handlers or cooling units), and all such
additional usage (to the extent permitted by law), installation
and maintenance thereof shall be paid for by Tenant as Additional
Base Rental. Landlord, at any time during the Lease Term, shall
have the right to separately meter electrical usage for the
Premises or to measure electrical usage by survey or any other
method that Landlord, in its reasonable judgment, deems to be
appropriate.
C. Notwithstanding Section A. above to the contrary, if Landlord
permits Tenant to purchase electrical power for the Premises from
a provider other than Landlord's designated company(ies), such
provider shall be considered to be a contractor of Tenant and
Tenant shall indemnify and hold Landlord harmless from such
provider's acts and omissions while in, or in connection with
their services to, the Building or Premises in accordance with
the terms and conditions of Article XV. In addition, at the
request of Landlord, Tenant shall allow Landlord to purchase
electricity from Tenant's provider at Tenant's rate or at such
lower rate as can be negotiated by the aggregation of Landlord's
and Tenant's requirements for electricity power.
XII. ENTRY BY LANDLORD.
Landlord and its agents or representatives shall have the right to
enter the Premises to inspect the same, or to show the Premises to prospective
purchasers, mortgagees, tenants (during the last twelve months of the Lease Term
or earlier in connection with a potential relocation) or insurers, or to clean
or make repairs, alterations or additions thereto, including any work that
Landlord deems necessary for the safety, protection or preservation of the
Building or any occupants thereof, or to facilitate repairs, alterations or
additions to the Building or any other tenants' premises. Except for any entry
by Landlord in an emergency situation or to provide normal cleaning and
janitorial service, Landlord shall provide Tenant with reasonable prior notice
of any entry into the Premises, which notice may be given verbally.
Notwithstanding the foregoing, except in emergency situations as determined by
Landlord, Landlord shall exercise reasonable efforts to perform any entry into
the Premises in a manner that is reasonably designed to minimize interference
with the operation of Tenant's business in the Premises. If reasonably necessary
for the protection and safety of Tenant and its employees, Landlord shall have
the right to temporarily close the Premises to perform repairs, alterations or
additions in the Premises, provided that Landlord shall use reasonable efforts
to perform all such work on weekends and after Normal Business Hours. Entry by
Landlord hereunder shall not constitute a constructive eviction or entitle
Tenant to any abatement or reduction of Rent by reason thereof. Notwithstanding
the foregoing, if Landlord temporarily closes the Premises as provided above for
a period in excess of three (3) consecutive Business Days, Tenant, as its sole
remedy, shall be entitled to receive a per diem abatement of Base Rental during
the period
19
beginning on the fourth (4th) consecutive Business Day of closure and ending on
the date on which the Premises are returned to Tenant in a tenantable condition.
Tenant, however, shall not be entitled to an abatement if the repairs,
alterations and/or additions to be performed are required as a result of the
acts or omissions of Tenant, its agents, employees or contractors, including,
without limitation, a default by Tenant in its maintenance and repair
obligations under the Lease.
XIII. ASSIGNMENT AND SUBLETTING.
A. Subject to XIII.E. below, Tenant shall not assign, sublease,
transfer or encumber this Lease or any interest therein or grant
any license, concession or other right of occupancy of the
Premises or any portion thereof or otherwise permit the use of
the Premises or any portion thereof by any party other than
Tenant (any of which events is hereinafter called a "Transfer")
without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed with
respect to any proposed assignment or subletting. Landlord's
consent shall not be considered unreasonably withheld if: (1) the
proposed transferee's financial responsibility does not meet the
same criteria Landlord uses to select Building tenants; (2) the
proposed transferee's business is not suitable for the Building
considering the business of the other tenants and the Building's
prestige or would result in a violation of an exclusive right
granted to another tenant in the Building; (3) the proposed use
is different than the Permitted Use; (4) the proposed transferee
is a government agency or occupant of the Building; (5) Tenant is
in default; or (6) any portion of the Building or Premises would
become subject to additional or different governmental laws or
regulations as a consequence of the proposed Transfer and/or the
proposed transferee's use and occupancy of the Premises.
Notwithstanding the foregoing, Landlord will not withhold its
consent solely because the proposed subtenant or assignee is an
occupant of the Building if Landlord does not have space
available for lease in the Building that is comparable to the
space Tenant desires to sublet or assign. For purposes hereof,
Landlord shall be deemed to have comparable space if it has space
available on any floor of the Building that is approximately the
same size as the space Tenant desires to sublet or assign within
six (6) months of the proposed commencement of the proposed
sublease or assignment. Tenant acknowledges that the foregoing is
not intended to be an exclusive list of the reasons for which
Landlord may reasonably withhold its consent to a proposed
Transfer. Any attempted Transfer in violation of the terms of
this Article shall, at Landlord's option, be void. Consent by
Landlord to one or more Transfers shall not operate as a waiver
of Landlord's rights as to any subsequent Transfers. In addition,
Tenant shall not, without Landlord's consent, publicly advertise
the proposed rental rate for any Transfer.
B. If Tenant requests Landlord's consent to a Transfer, Tenant,
together with such request for consent, shall provide Landlord
with the name of the proposed transferee and the nature of the
business of the proposed transferee, the term, use, rental rate
and all other material terms and conditions of the proposed
Transfer, including, without limitation, a copy of the proposed
assignment, sublease or other contractual documents and evidence
satisfactory to Landlord that the proposed transferee is
financially responsible. Notwithstanding Landlord's agreement to
act reasonably under Section XIII.A. above, Landlord may, within
thirty (30) days after its receipt of all information and
documentation required herein, either, (1) consent to or
reasonably refuse to consent to such Transfer in writing; or (2)
terminate this Lease, with thirty (30) days prior notice, with
respect to the Premises (if Tenant is proposing to assign the
Lease) or with respect to the portion of the Premises that Tenant
is proposing to sublet if the proposed sublease, with or without
renewal options, is to expire during the last twelve (12) months
of the Lease Term. Notwithstanding the foregoing, Tenant, within
ten (10) days after receipt of Landlord's notice of intent to
terminate, may withdraw its request for consent to the Transfer.
In such event, Landlord's election to terminate the Lease with
respect to all or a portion of the Premises as described above
shall be null and void and of no force and effect. If Landlord
consents to any such Transfer, the Transfer and consent thereto
shall be in a form approved by Landlord, and Tenant shall bear
all costs and expenses incurred by Landlord in connection with
the review and approval of such documentation, which costs and
expenses shall be deemed to be at least Five Hundred Dollars
($500.00). Notwithstanding the foregoing, provided that Tenant
does not request any changes to this Lease or Landlord's standard
form of
20
consent in connection with the proposed transfer, such costs and
expenses shall not exceed Five Hundred Dollars ($500.00).
C. Fifty percent (50%) of all cash or other proceeds (the "Transfer
Consideration") of any Transfer of Tenant's interest in this
Lease and/or the Premises, whether consented to by Landlord or
not, shall be paid to Landlord and Tenant hereby assigns all
rights it might have or ever acquire in any such proceeds to
Landlord. In addition to the Rent hereunder, Tenant hereby
covenants and agrees to pay to Landlord fifty percent (50%) of
all rent and other consideration which it receives which is in
excess of the Rent payable hereunder within ten (10) days
following receipt thereof by Tenant. Any assignee of Tenant's
rights under this Lease shall pay all sums due under this Lease
directly to Landlord. Further, if Tenant is in Monetary Default
(defined in Section XXII.A. below), Landlord may require that all
sublease payments be made directly to Landlord, in which case
Tenant shall receive a credit against Rent in the amount of any
payments received (less Landlord's share of any excess). However,
by accepting any such payments directly from the assignee or
subtenant, whether as a result of the foregoing or otherwise,
Landlord does not waive any claims against the Tenant hereunder
or release Tenant from any obligations under this Lease, nor
recognize the subtenant as the tenant under the Lease.
D. If Tenant is a corporation, limited liability company or similar
entity, and if at any time during the Lease Term the entity or
entities who own the voting shares at the time of the execution
of this Lease cease for any reason (including but not limited to
merger, consolidation or other reorganization involving another
corporation) to own a majority of such shares, or if Tenant is a
partnership and if at any time during the Lease Term the general
partner or partners who own the general partnership interests in
the partnership at the time of the execution of this Lease, cease
for any reason to own a majority of such interests (except as the
result of transfers by gift, bequest or inheritance to or for the
benefit of members of the immediate family of such original
shareholder[s] or partner[s]), such an event shall be deemed to
be a Transfer. The preceding sentence shall not apply whenever
Tenant is a corporation, the outstanding stock of which is listed
on a recognized security exchange, or if at least eighty percent
(80%) of its voting stock is owned by another corporation, the
voting stock of which is so listed.
E. Notwithstanding anything to the contrary contained in Section
XIII.A or Section XIII.D., Tenant may assign its entire interest
under this Lease or sublet the Premises to a wholly owned
corporation, partnership or other legal entity or affiliate,
subsidiary or parent of Tenant or to any successor to Tenant by
purchase, merger, consolidation or reorganization (hereinafter,
collectively, referred to as "Permitted Transfer" and the
transferee of a Permitted Transfer a "Permitted Transferee")
without the consent of Landlord, provided: (i) Tenant is not in
default under this Lease; (ii) if such proposed transferee is a
successor to Tenant by purchase, merger, consolidation or
reorganization, the continuing or surviving entity shall own all
or substantially all of the assets of Tenant and shall have a net
worth which is at least equal to the greater of Tenant's net
worth at the date of this Lease or Tenant's net worth at the date
of the Transfer; (iii) such proposed transferee operates the
business in the Premises for the Permitted Use and no other
purpose; and (iv) in no event shall any Permitted Transfer
release or relieve Tenant from any of its obligations under this
Lease. Tenant shall give Landlord written notice at least thirty
(30) days prior to the effective date of such Permitted Transfer.
As used herein: (a) "parent" shall mean a company which owns a
majority of Tenant's voting equity; (b) "subsidiary" shall mean
an entity wholly owned by Tenant or at least fifty-one percent
(51%) of whose voting equity is owned by Tenant; and (c)
"affiliate" shall mean an entity controlled, controlling or under
common control with Tenant. Notwithstanding the foregoing, sale
of the shares of equity of any affiliate or subsidiary to which
this Lease has been assigned or transferred other than to another
parent, subsidiary or affiliate of the original Tenant named
hereunder shall be deemed to be an assignment requiring the
consent of Landlord hereunder.
F. Any Transfer consented to by Landlord in accordance with this
Article XIII shall be only for the Permitted Use and for no other
purpose. In no event shall any Transfer release or relieve Tenant
or any Guarantors from any obligations under this Lease.
21
XIV. LIENS.
Tenant will not permit any mechanic's liens or other liens to be
placed upon the Premises or Tenant's leasehold interest therein, the Building,
or the Property. Landlord's title to the Building and Property is and always
shall be paramount to the interest of Tenant, and nothing herein contained shall
empower Tenant to do any act that can, shall or may encumber Landlord's title.
In the event any such lien does attach, Tenant shall, within twenty (20) days of
notice of the filing of said lien, either discharge or bond over such lien to
the satisfaction of Landlord and Landlord's Mortgagee (as hereinafter defined),
and in such a manner as to remove the lien as an encumbrance against the
Building and Property. If Tenant shall fail to so discharge or bond over such
lien, then, in addition to any other right or remedy of Landlord, Landlord may,
but shall not be obligated to bond over or discharge the same. Any amount paid
by Landlord for any of the aforesaid purposes, including reasonable attorneys'
fees (if and to the extent permitted by law) shall be paid by Tenant to Landlord
on demand as Additional Base Rental. 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.
XV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent caused by the negligence or willful
misconduct of Landlord or any Landlord Related Parties (defined
below), Tenant shall indemnify, defend and hold Landlord, its
trustees, members, principals, beneficiaries, partners, officers,
directors, employees, Mortgagee(s) (defined in Article XXX) and
agents ("Landlord Related Parties") harmless against and from all
liabilities, obligations, damages, penalties, claims, actions,
costs, charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and to
the extent permitted by Law), which may be imposed upon, incurred
by or asserted against Landlord or any of the Landlord Related
Parties and arising out of or in connection with any damage or
injury occurring in the Premises or any acts or omissions
(including violations of Law) of Tenant, the Tenant Related
Parties (defined below) or any of Tenant's transferees,
contractors or licensees.
B. Except to the extent caused by the negligence or willful
misconduct of Tenant or any Tenant Related Parties (defined
below), Landlord shall indemnify, defend and hold Tenant, its
trustees, members, principals, beneficiaries, partners, officers,
directors, employees and agents ("Tenant Related Parties")
harmless against and from all liabilities, obligations, damages,
penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees and
other professional fees (if and to the extent permitted by Law),
which may be imposed upon, incurred by or asserted against Tenant
or any of the Tenant Related Parties and arising out of or in
connection with the acts or omissions (including violations of
Law) of Landlord, the Landlord Related Parties or any of
Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable
for, and Tenant hereby waives, all claims for loss or damage to
Tenant's business or damage to person or property sustained by
Tenant or any person claiming by, through or under Tenant
[including Tenant's principals, agents and employees
(collectively, the "Tenant Related Parties")] resulting from any
accident or occurrence in, on or about the Premises, the Building
or the Property, including, without limitation, claims for loss,
theft or damage resulting from: (1) the Premises, Building, or
Property, or any equipment or appurtenances becoming out of
repair; (2) wind or weather; (3) any defect in or failure to
operate, for whatever reason, any sprinkler, heating or
air-conditioning equipment, electric wiring, gas, water or steam
pipes; (4) broken glass; (5) the backing up of any sewer pipe or
downspout; (6) the bursting, leaking or running of any tank,
water closet, drain or other pipe; (7) the escape of steam or
water; (8) water, snow or ice being upon or coming through the
roof, skylight, stairs, doorways, windows, walks or any other
place upon or near the Building; (9) the falling of any fixture,
plaster, tile or other material; (10) any act, omission or
negligence of other tenants, licensees or any other persons (not
including Landlord's employees or agents acting in such capacity)
or occupants of the Building or of adjoining or contiguous
buildings, or owners of adjacent or contiguous property or the
public, or by construction of any private, public or quasi-public
work; or (11) any other cause of any nature except, as to items
1-9, where such loss or damage is due to
22
Landlord's negligent or willful failure to make repairs required
to be made pursuant to other provisions of this Lease, after the
expiration of a reasonable time after written notice to Landlord
of the need for such repairs. To the maximum extent permitted by
law, Tenant agrees to use and occupy the Premises, and to use
such other portions of the Building as Tenant is herein given the
right to use, at Tenant's own risk.
XVI. TENANT'S INSURANCE.
A. At all times commencing on and after the earlier of the
Commencement Date and the date Tenant or its agents, employees or
contractors enters the Premises for any purpose, Tenant shall
carry and maintain, at its sole cost and expense:
1. Commercial General Liability Insurance applicable to the
Premises and its appurtenances providing, on an occurrence
basis, a minimum combined single limit of Two Million
Dollars ($2,000,000.00), with a contractual liability
endorsement covering Tenant's indemnity obligations under
this Lease.
2. All Risks of Physical Loss Insurance written at replacement
cost value and with a replacement cost endorsement covering
all of Tenant's Property in the Premises.
3. Workers' Compensation Insurance as required by the state in
which the Premises is located and in amounts as may be
required by applicable statute, and Employers' Liability
Coverage of One Million Dollars ($1,000,000.00) per
occurrence.
4. Whenever good business practice, in Landlord's reasonable
judgment, indicates the need of additional insurance
coverage or different types of insurance in connection with
the Premises or Tenant's use and occupancy thereof, Tenant
shall, upon request, obtain such insurance at Tenant's
expense and provide Landlord with evidence thereof.
B. Except for items for which Landlord is responsible under the Work
Letter Agreement, before any repairs, alterations, additions,
improvements, or construction are undertaken by or on behalf of
Tenant, Tenant shall carry and maintain, at its expense, or
Tenant shall require any contractor performing work on the
Premises to carry and maintain, at no expense to Landlord, in
addition to Workers' Compensation Insurance as required by the
jurisdiction in which the Building is located, All Risk Builder's
Risk Insurance in the amount of the replacement cost of any
alterations, additions or improvements (or such other amount
reasonably required by Landlord) and Commercial General Liability
Insurance (including, without limitation, Contractor's Liability
coverage, Contractual Liability coverage and Completed Operations
coverage,) written on an occurrence basis with a minimum combined
single limit of Two Million Dollars ($2,000,000.00) and adding
"the named Landlord hereunder (or any successor thereto), Equity
Office Properties Trust, a Maryland real estate investment trust,
EOP Operating Limited Partnership, a Delaware limited
partnership, and their respective members, principals,
beneficiaries, partners, officers, directors, employees, agents
and any Mortgagee(s)", and other designees of Landlord as the
interest of such designees shall appear, as additional insureds
(collectively referred to as the "Additional Insureds").
C. Any company writing any insurance which Tenant is required to
maintain or cause to be maintained pursuant to the terms of this
Lease (all such insurance as well as any other insurance
pertaining to the Premises or the operation of Tenant's business
therein being referred to as "Tenant's Insurance"), as well as
the form of such insurance, shall at all times be subject to
Landlord's reasonable approval, and each such insurance company
shall have an A.M. Best rating of "A-" or better and shall be
licensed and qualified to do business in the state in which the
Premises is located. All policies evidencing Tenant's Insurance
(except for Workers' Compensation Insurance) shall specify Tenant
as named insured and the Additional Insureds as additional
insureds. Provided that the coverage afforded Landlord and any
designees of Landlord shall not be reduced or otherwise adversely
affected, all of Tenant's Insurance may be carried under a
blanket policy covering the Premises and any other of Tenant's
locations. All
23
policies of Tenant's Insurance shall contain endorsements that
the insurer(s) will give to Landlord and its designees at least
thirty (30) days' advance written notice of any change,
cancellation, termination or lapse of said insurance. Tenant
shall be solely responsible for payment of premiums for all of
Tenant's Insurance. Tenant shall deliver to Landlord at least
fifteen (15) days prior to the time Tenant's Insurance is first
required to be carried by Tenant, and upon renewals at least
fifteen (15) days prior to the expiration of any such insurance
coverage, a certificate of insurance of all policies procured by
Tenant in compliance with its obligations under this Lease. The
limits of Tenant's Insurance shall in no event limit Tenant's
liability under this Lease.
D. Tenant shall not do or fail to do anything in, upon or about the
Premises which will: (1) violate the terms of any of Landlord's
insurance policies; (2) prevent Landlord from obtaining policies
of insurance acceptable to Landlord or any Mortgagees; or (3)
result in an increase in the rate of any insurance on the
Premises, the Building, any other property of Landlord or of
others within the Building. In the event of the occurrence of any
of the events set forth in this Section, Tenant shall pay
Landlord upon demand, as Additional Base Rental, the cost of the
amount of any increase in any such insurance premium, provided
that the acceptance by Landlord of such payment shall not be
construed to be a waiver of any rights by Landlord in connection
with a default by Tenant under the Lease. If Tenant fails to
obtain the insurance coverage required by this Lease, Landlord
may, at its option, obtain such insurance for Tenant, and Tenant
shall pay, as Additional Base Rental, the cost of all premiums
thereon and all of Landlord's costs associated therewith.
XVII. SUBROGATION.
Notwithstanding anything in this Lease to the contrary, Landlord and
Tenant shall cause their respective insurance carriers to waive any and all
rights of recovery, claim, action or causes of action against the other and
their respective trustees, principals, beneficiaries, partners, officers,
directors, agents, and employees, for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to Tenant's Property, the Building, the
Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.
XVIII. LANDLORD'S INSURANCE.
Landlord shall maintain property insurance on the Building in such
amounts as Landlord reasonably elects, provided that, during the Lease Term
Landlord shall maintain standard so-called "all risk" property insurance,
covering the Building in an amount equal to the replacement cost thereof
(including Leasehold Improvements approved by Landlord but excluding foundations
and footings) at the time in question. Landlord also shall maintain Commercial
General Liability coverage written on an occurrence basis with a minimum
combined single limit of at least Two Million Dollars ($2,000,000.00). The cost
of such insurance shall be included as a part of the Basic Costs, and payments
for losses and recoveries thereunder shall be made solely to Landlord or the
Mortgagees of Landlord as their interests shall appear.
XIX. CASUALTY DAMAGE.
A. If the Premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give prompt written notice thereof
to Landlord. In case the Building shall be so damaged that in
Landlord's reasonable judgment, substantial alteration or
reconstruction of the Building shall be required (whether or not
the Premises has been damaged by such casualty) or in the event
Landlord will not be permitted by applicable law to rebuild the
Building in substantially the same form as existed prior to the
fire or casualty or in the event the Premises has been materially
damaged and there is less than two (2) years of the Lease Term
remaining on the date of such casualty or in the event any
Mortgagee should require that the insurance proceeds payable as a
result of a casualty be applied to the payment of the mortgage
debt or in the event of any material uninsured loss to the
Building, Landlord may, at its option, terminate this Lease by
notifying Tenant in writing of such termination within ninety
(90) days after the date of
24
such casualty. Such termination shall be effective as of the date
of fire or casualty, with respect to any portion of the Premises
that was rendered untenantable, and the effective date of
termination specified in Landlord's notice, with respect to any
portion of the Premises that remained tenantable. If Landlord
does not elect to terminate this Lease, Landlord shall commence
and proceed with reasonable diligence to restore the Building
(provided that Landlord shall not be required to restore any
unleased premises in the Building) and the Leasehold Improvements
(but excluding any improvements, alterations or additions made by
Tenant in violation of this Lease) located within the Premises,
if any, which Landlord has insured (or is required to insure) to
substantially the same condition they were in immediately prior
to the happening of the casualty. Notwithstanding the foregoing,
Landlord's obligation to restore the Building, and the Leasehold
Improvements, if any, shall not require Landlord to expend for
such repair and restoration work more than the insurance proceeds
actually received by the Landlord as a result of the casualty.
When repairs to the Premises have been completed by Landlord,
Tenant shall complete the restoration or replacement of all
Tenant's Property necessary to permit Tenant's reoccupancy of the
Premises, and Tenant shall present Landlord with evidence
satisfactory to Landlord of Tenant's ability to pay such costs
prior to Landlord's commencement of repair and restoration of the
Premises. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting
in any way from such damage or the repair thereof, except that,
subject to the provisions of the next sentence, Landlord shall
allow Tenant a fair diminution of Rent on a per diem basis during
the time and to the extent any damage to the Premises causes the
Premises to be rendered untenantable and not used by Tenant. If
the Premises or any other portion of the Building is damaged by
fire or other casualty resulting from the negligence of Tenant or
any Tenant Related Parties, the Rent hereunder shall not be
diminished during any period during which the Premises, or any
portion thereof, is untenantable (except to the extent Landlord
is entitled to be reimbursed by the proceeds of any rental
interruption insurance), and Tenant shall be liable to Landlord
for the cost of the repair and restoration of the Building caused
thereby to the extent such cost and expense is not covered by
insurance proceeds. Landlord and Tenant hereby waive the
provisions of any law from time to time in effect during the
Lease Term relating to the effect upon leases of partial or total
destruction of leased property. Landlord and Tenant agree that
their respective rights in the event of any damage to or
destruction of the Premises shall be those specifically set forth
herein.
B. Notwithstanding anything in this Article XIX to the contrary, if
all or any portion of the Premises shall be made untenantable by
a fire or other casualty, Landlord shall, with reasonable
promptness, cause an architect or general contractor selected by
Landlord to estimate the amount of time required to substantially
complete repair and restoration of the Premises and make the
Premises tenantable again, using standard working methods (the
"Completion Estimate"). If the Completion Estimate indicates that
the Premises cannot be made tenantable within one hundred eighty
(180) days from the date the repair and restoration is started,
either party shall have the right to terminate this Lease by
giving written notice to the other of such election within ten
(10) days after its receipt of the Completion Estimate. Tenant,
however, shall not have the right to terminate this Lease in the
event that the fire or casualty in question was caused by the
negligence or intentional misconduct of Tenant or any Tenant
Related Parties. If the Completion Estimate indicates that the
Premises can be made tenantable within one hundred eighty (180)
days from the date the repair and restoration is started and
Landlord has not otherwise exercised its right to terminate the
Lease pursuant to the terms hereof, or if the Completion Estimate
indicates that the Premises cannot be made tenantable within one
hundred eighty (180) days but neither party terminates this Lease
pursuant to this Article XIX, Landlord shall proceed with
reasonable promptness to repair and restore the Premises.
Notwithstanding the foregoing, if Tenant was entitled to but
elected not to exercise its right to terminate the Lease and
Landlord does not substantially complete the repair and
restoration of the Premises within two (2) months after the
expiration of the estimated period of time set forth in the
Completion Estimate, which period shall be extended to the extent
of any Reconstruction Delays, then Tenant may terminate this
Lease by written notice to Landlord within fifteen (15) days
after the expiration of such period, as the same may be extended.
For purposes of this Lease, the term "Reconstruction
25
Delays" shall mean: (i) any delays caused by the insurance
adjustment process; (ii) any delays caused by Tenant; and (iii)
any delays caused by events of Force Majeure. It is agreed that
Reconstruction Delays attributable to items (i) or (iii) above
shall not exceed ninety (90) days for each such type of delay.
C. Landlord shall not terminate this Lease in accordance with this
Article XIX unless it also terminates the leases of all similarly
affected office tenants in the Building. In determining whether
other tenants are similarly affected, Landlord shall be entitled
to consider all relevant factors such as the extent of damage,
the time to rebuild, the availability of insurance proceeds and
the rights of the tenants in question to impose penalties upon
Landlord (including the right to terminate) if the repairs are
not completed within a specified period of time. Landlord shall
not, however, be entitled to consider the rental rates payable
under the leases in question or the length of time remaining
under the leases in question (unless there is less than two (2)
years remaining on the Lease Term hereof) in its determination of
whether to terminate or rebuild.
XX. DEMOLITION.
INTENTIONALLY OMITTED.
XXI. CONDEMNATION.
Either party may terminate this Lease if the whole or any material
part of the Premises, or any portion of the Building or Property such that the
Tenant no longer has safe access to the Premises, shall be taken or condemned
for any public or quasi-public use under law, by eminent domain or private
purchase in lieu thereof (a "Taking"). Landlord shall also have the right to
terminate this Lease if there is a Taking of any portion of the Building or
Property which would leave the remainder of the Building unsuitable for use as
an office building in a manner comparable to the Building's use prior to the
Taking. In order to exercise its right to terminate the Lease, Landlord or
Tenant, as the case may be, must provide written notice of termination to the
other within forty five (45) days after the terminating party first receives
notice of the Taking. Any such termination shall be effective as of the date the
physical taking of the Premises or the portion of the Building or Property
occurs. If this Lease is not terminated, the Rentable Area of the Building, the
Rentable Area of the Premises and Tenant's Pro Rata Share shall, if applicable,
be appropriately adjusted. In addition, Rent for any portion of the Premises
taken or condemned shall be abated during the unexpired Lease Term effective
when the physical taking of the portion of the Premises occurs. All compensation
awarded for any such taking or condemnation, or sale proceeds in lieu thereof,
shall be the property of Landlord, and Tenant shall have no claim thereto, the
same being hereby expressly waived by Tenant, except for any portions of such
award or proceeds which are specifically allocated by the condemning or
purchasing party for the taking of or damage to trade fixtures of Tenant, which
Tenant specifically reserves to itself.
XXII. EVENTS OF DEFAULT.
The following events shall be deemed to be events of default under
this Lease:
A. Tenant shall fail to pay when due any Base Rental, Additional
Base Rental or other Rent under this Lease and such failure shall
continue for five (5) Business Days after Tenant's receipt of
written notice from Landlord (hereinafter sometimes referred to
as a "Monetary Default").
B. Any failure by Tenant (other than a Monetary Default) to comply
with any term, provision or covenant of this Lease, including,
without limitation, the rules and regulations, which failure is
not cured within twenty (20) days after delivery to Tenant of
notice of the occurrence of such failure (or such longer period
of time as may be reasonably necessary to cure (not to exceed 60
days), provided that Tenant commences to cure such default within
twenty (20) days after notice from Landlord and, from time to
time upon request of Landlord, furnishes Landlord with evidence
that demonstrates, in Landlord's reasonable judgment, that Tenant
is diligently pursuing a course that will remedy such failure),
provided that if any such failure creates a hazardous condition,
such failure must be cured immediately. Notwithstanding the
foregoing, if Tenant fails to comply with any particular
provision or covenant of this Lease, including, without
limitation, Tenant's obligation to pay Rent when due, on three
(3) occasions during any
26
twelve (12) month period, any subsequent violation of such
provision or covenant shall be considered to be an incurable
default by Tenant.
C. Tenant or any Guarantor shall become insolvent, or shall make a
transfer in fraud of creditors, or shall file bankruptcy or shall
make a general assignment for the benefit of creditors, or Tenant
or any Guarantor shall admit in writing its inability to pay its
debts as they become due.
D. Tenant or any Guarantor shall file a petition under any section
or chapter of the United States Bankruptcy Code, as amended,
pertaining to bankruptcy, or under any similar law or statute of
the United States or any State thereof, or Tenant or any
Guarantor shall be adjudged bankrupt or insolvent in proceedings
filed against Tenant or any Guarantor thereunder; or a petition
or answer proposing the adjudication of Tenant or any Guarantor
as a debtor or its reorganization under any present or future
federal or state bankruptcy or similar law shall be filed in any
court and such petition or answer shall not be discharged or
denied within sixty (60) days after the filing thereof.
E. A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any Guarantor or of the Premises
or of any of Tenant's Property located thereon in any proceeding
brought by Tenant or any Guarantor, or any such receiver or
trustee shall be appointed in any proceeding brought against
Tenant or any Guarantor and shall not be discharged within sixty
(60) days after such appointment or Tenant or such Guarantor
shall consent to or acquiesce in such appointment.
F. The leasehold estate hereunder shall be taken on execution or
other process of law or equity in any action against Tenant.
G. INTENTIONALLY OMITTED.
H. INTENTIONALLY OMITTED.
I. The liquidation, termination, dissolution, forfeiture of right to
do business, or death of Tenant or any Guarantor.
XXIII. REMEDIES.
A. Upon the occurrence of any event or events of default under this
Lease, Landlord shall have the option to pursue any one or more
of the following remedies without any notice (except as expressly
prescribed in Article XXII above) or demand whatsoever (and
without limiting the generality of the foregoing, Tenant hereby
specifically waives notice and demand for payment of Rent or
other obligations due [except as expressly prescribed in Article
XXII above] and waives any and all other notices or demand
requirements imposed by applicable law):
1. Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant
fails to surrender the Premises upon termination of the
Lease hereunder, Landlord may without prejudice to any other
remedy which it may have, enter upon and take possession of
the Premises and expel or remove Tenant and any other person
who may be occupying said Premises, or any part thereof, and
Tenant hereby agrees to pay to Landlord on demand the amount
of all loss and damage, including consequential damage,
which Landlord may suffer by reason of such termination,
whether through inability to relet the Premises on
satisfactory terms or otherwise, specifically including but
not limited to all Costs of Reletting (hereinafter defined)
and any deficiency that may arise by reason of any reletting
or failure to relet.
2. Enter upon and take possession of the Premises and expel or
remove Tenant or any other person who may be occupying said
Premises, or any part thereof, by process of law, without
having any civil or criminal liability therefor and without
terminating this Lease. Landlord may (but shall be under no
obligation to, except as otherwise specifically provided in
this subsection 2) relet the Premises or any part thereof
for the account of Tenant, in the name of Tenant or Landlord
or otherwise, without notice to
27
Tenant for such term or terms which may be greater or less
than the period which would otherwise have constituted the
balance of the Lease Term and on such conditions (which may
include concessions, free rent and alterations of the
Premises) and for such uses as Landlord in its absolute
discretion may determine, and Landlord may collect and
receive any rents payable by reason of such reletting.
Tenant agrees to pay Landlord on demand all Costs of
Reletting and any deficiency that may arise by reason of
such reletting or failure to relet. Landlord shall not be
responsible or liable for any failure to relet the Premises
or any part thereof or for any failure to collect any Rent
due upon any such reletting. No such re-entry or taking of
possession of the Premises by Landlord shall be construed as
an election on Landlord's part to terminate this Lease
unless a written notice of such termination is given to
Tenant. Landlord agrees to use reasonable efforts to
mitigate damages, provided that such reasonable efforts
shall not require Landlord to relet the Premises in
preference to any other space in the Building or to relet
the Premises to any party that Landlord could reasonably
reject as a transferee pursuant to Article XIII hereof.
3. Enter upon the Premises without having any civil or criminal
liability therefor, and do whatever Tenant is obligated to
do under the terms of this Lease, and Tenant agrees to
reimburse Landlord on demand for any reasonable expense
which Landlord may incur in thus affecting compliance with
Tenant's obligations under this Lease together with interest
at the lesser of a per annum rate equal to: (a) the Maximum
Rate, or (b) the Prime Rate plus four percent (4%).
4. In order to regain possession of the Premises and to deny
Tenant access thereto in any instance in which Landlord has
terminated this Lease or Tenant's right to possession, or to
limit access to the Premises in accordance with local law in
the event of a default by Tenant, Landlord or its agent may,
at the reasonable expense and liability of the Tenant, alter
or change any or all locks or other security devices
controlling access to the Premises without posting or giving
notice of any kind to Tenant. Landlord shall have no
obligation to provide Tenant a key or grant Tenant access to
the Premises so long as Tenant is in default under this
Lease beyond the applicable notice and cure period. Tenant
shall not be entitled to recover possession of the Premises,
terminate this Lease, or recover any actual, incidental,
consequential, punitive, statutory or other damages or award
of attorneys' fees, by reason of Landlord's alteration or
change of any lock or other security device. Landlord may,
without notice, remove and either dispose of or store, at
Tenant's reasonable expense, any property belonging to
Tenant that remains in the Premises after Landlord has
regained possession thereof.
5. Terminate this Lease, in which event, Tenant shall
immediately surrender the Premises to Landlord and pay to
Landlord the sum of: (a) all Rent accrued hereunder through
the date of termination, and (b) an amount equal to: the
total Rent that Tenant would have been required to pay for
the remainder of the Lease Term discounted to present value
at the Prime Rate then in effect, minus the then present
fair rental value of the Premises for the remainder of the
Lease Term, similarly discounted, after deducting all
anticipated Costs of Reletting (as defined below).
B. For purposes of this Lease, the term "Costs of Reletting" shall
mean all reasonable costs and expenses incurred by Landlord in
connection with the reletting of the Premises, including without
limitation, the cost of cleaning, renovation, repairs, decoration
and alteration of the Premises for a new tenant or tenants,
advertisement, marketing, brokerage and legal fees (if and to the
extent permitted by law), the cost of protecting or caring for
the Premises while vacant, the cost of removing and storing any
property located on the Premises, any increase in insurance
premiums caused by the vacancy of the Premises and any other
out-of-pocket expenses incurred by Landlord including tenant
incentives, allowances and inducements.
C. Except as otherwise herein provided, no repossession or
re-entering of the Premises or any part thereof pursuant to
Article XXIII hereof or otherwise shall
28
relieve Tenant or any Guarantor of its liabilities and
obligations hereunder, all of which shall survive such
repossession or re-entering. Notwithstanding any such
repossession or re-entering by reason of the occurrence of an
event of default, Tenant will pay to Landlord the Rent required
to be paid by Tenant pursuant to this Lease.
D. If Landlord declares Tenant to be in default after expiration of
the applicable notice and cure period, Landlord shall be entitled
to receive interest on any unpaid and overdue item of Rent at a
rate equal to the lesser of (i) the Maximum Rate, or (ii) the
Prime Rate plus four percent (4%) per annum. No right or remedy
herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy, and each and every right
and remedy shall be cumulative and in addition to any other right
or remedy given hereunder or now or hereafter existing by
agreement, applicable law or in equity. In addition to other
remedies provided in this Lease, Landlord shall be entitled, to
the extent permitted by applicable law, to injunctive relief, or
to a decree compelling performance of any of the covenants,
agreements, conditions or provisions of this Lease, or to any
other remedy allowed to Landlord at law or in equity. Forbearance
by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default.
E. This Article XXIII shall be enforceable to the maximum extent
such enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
XXIV. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD HEREUNDER) TO TENANT SHALL
BE LIMITED TO THE INTEREST OF LANDLORD IN THE BUILDING, AND TENANT AGREES TO
LOOK SOLELY TO LANDLORD'S INTEREST IN THE BUILDING FOR THE RECOVERY OF ANY
JUDGMENT OR AWARD AGAINST THE LANDLORD, IT BEING INTENDED THAT NEITHER LANDLORD
NOR ANY MEMBER, PRINCIPAL, PARTNER, SHAREHOLDER, OFFICER, DIRECTOR OR
BENEFICIARY OF LANDLORD SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES
WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS ON THE
PROPERTY, BUILDING OR PREMISES NOTICE AND REASONABLE TIME TO CURE SUCH ALLEGED
DEFAULT BY LANDLORD.
XXV. NO WAIVER.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys to
the Premises shall not constitute an acceptance or surrender of the Premises.
XXVI. EVENT OF BANKRUPTCY.
In addition to, and in no way limiting the other remedies set forth
herein, Landlord and Tenant agree that if Tenant ever becomes the subject of a
voluntary or involuntary bankruptcy, reorganization, composition, or other
similar type proceeding under the federal bankruptcy laws, as now enacted or
hereinafter amended, then:
A. "Adequate protection" of Landlord's interest in the Premises
pursuant to the provisions of Section 361 and 363 (or their
successor sections) of the Bankruptcy Code, 11 U.S.C. Section 101
et seq., (such Bankruptcy Code as amended from time to time being
herein referred to as the "Bankruptcy Code"), prior to assumption
and/or assignment of the Lease by Tenant shall include, but not
be limited to all (or any part) of the following:
1. the continued payment by Tenant of the Base Rental and all
other Rent due and owing hereunder and the performance of
all other covenants and obligations hereunder by Tenant;
29
2. the furnishing of an additional/new security deposit by
Tenant in the amount of three (3) times the then current
monthly Base Rental.
B. "Adequate assurance of future performance" by Tenant and/or any
assignee of Tenant pursuant to Bankruptcy Code Section 365 will
include (but not be limited to) payment of an additional/new
Security Deposit in the amount of three (3) times the then
current monthly Base Rental payable hereunder.
C. Any person or entity to which this Lease is assigned pursuant to
the provisions of the Bankruptcy Code, shall be deemed without
further act or deed to have assumed all of the obligations of
Tenant arising under this Lease on and after the effective date
of such assignment. Any such assignee shall, upon demand by
Landlord, execute and deliver to Landlord an instrument
confirming such assumption of liability.
D. Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of the Landlord under
this Lease, whether or not expressly denominated as "Rent," shall
constitute "rent" for the purposes of Section 502(b) (6) of the
Bankruptcy Code.
E. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise to be delivered to Landlord
(including Base Rentals and other Rent hereunder), shall be and
remain the exclusive property of Landlord and shall not
constitute property of Tenant or of the bankruptcy estate of
Tenant. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust by Tenant or
Tenant's bankruptcy estate for the benefit of Landlord and shall
be promptly paid to or turned over to Landlord.
F. If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code to any person
or entity who shall have made a bona fide offer to accept an
assignment of this Lease on terms acceptable to the Tenant, then
notice of such proposed offer/assignment, setting forth: (1) the
name and address of such person or entity, (2) all of the terms
and conditions of such offer, and (3) the adequate assurance to
be provided Landlord to assure such person's or entity's future
performance under the Lease, shall be given to Landlord by Tenant
no later than twenty (20) days after receipt by Tenant, but in
any event no later than ten (10) days prior to the date that
Tenant shall make application to a court of competent
jurisdiction for authority and approval to enter into such
assumption and assignment, and Landlord shall thereupon have the
prior right and option, to be exercised by notice to Tenant given
at any time prior to the effective date of such proposed
assignment, to accept an assignment of this Lease upon the same
terms and conditions and for the same consideration, if any, as
the bona fide offer made by such persons or entity, less any
brokerage commission which may be payable out of the
consideration to be paid by such person for the assignment of
this Lease.
G. To the extent permitted by law, Landlord and Tenant agree that
this Lease is a contract under which applicable law excuses
Landlord from accepting performance from (or rendering
performance to) any person or entity other than Tenant within the
meaning of Sections 365(c) and 365(e) (2) of the Bankruptcy Code.
XXVII. WAIVER OF JURY TRIAL.
Landlord and Tenant hereby waive any right to a trial by jury in any
action or proceeding based upon, or related to, the subject matter of this
Lease. This waiver is knowingly, intentionally, and voluntarily made by Tenant,
and Tenant acknowledges that neither Landlord nor any person acting on behalf of
Landlord has made any representations of fact to induce this waiver of trial by
jury or in any way to modify or nullify its effect. Tenant further acknowledges
that it has been represented (or has had the opportunity to be represented) in
the signing of this Lease and in the making of this waiver by independent legal
counsel, selected of its own free will, and that it has had the opportunity to
discuss this waiver with counsel.
XXVIII. RELOCATION.
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A. Landlord, at its expense at any time before or during the Lease
Term (but not more than twice), shall be entitled to cause Tenant
to relocate from the Premises to space containing not less than
95% of the Rentable Area of the Premises and a comparable layout,
leasehold improvements and finishes as the Premises prior to the
relocation (the "Relocation Space") within the Building or
adjacent buildings within the same project at any time upon
ninety (90) days' prior written notice to Tenant. Such a
relocation shall not affect this Lease except that from and after
the date of such relocation, "Premises" shall refer to the
Relocation Space into which Tenant has been moved, rather than
the original Premises as herein defined, and the Base Rental
shall be adjusted so that immediately following such relocation
the Base Rental for the Relocation Space per annum on a per
square foot of Rentable Area basis shall be the same as the Base
Rental per annum immediately prior to such relocation for the
original Premises on a per square foot of Rentable Area basis,
provided that the total monthly Base Rental for the Relocation
Space shall in no event exceed the Base Rental for the Premises.
Tenant's Pro Rata Share shall also be adjusted in accordance with
the formula set forth in this Lease, provided that the Additional
Base Rental for the Relocation Space shall not exceed the
Additional Base Rental for the Premises. Landlord agrees to
reimburse Tenant for all reasonable out-of-pocket costs incurred
by Tenant in connection with the Relocation and not paid directly
by Landlord, including the cost of moving furniture and
equipment, installing cabling and wiring, and reprinting existing
stationery and business cards and similar items of expense.
B. Notwithstanding the foregoing, if Landlord provides Tenant with a
notice of relocation intending to relocate the Premises to any
location other than the top three (3) floors in the Phase I
Building or Phase II Building, Tenant shall have the right to
terminate this Lease by giving written notice of termination to
Landlord within twenty (20) days after the date of Landlord's
notice of relocation to Tenant. Such termination shall be
effective sixty (60) days after the date of Landlord's notice of
relocation, provided that Landlord, within ten (10) days after
receipt of Tenant's notice of termination, shall have the right
to withdraw its notice of relocation. In such event, this Lease
shall continue in full force and effect as if Landlord had never
provided Tenant with notice of relocation.
XXIX. HOLDING OVER.
In the event of holding over by Tenant after expiration or other
termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Articles XXII and XXIII hereof, occupancy of the Premises subsequent to such
termination or expiration shall be that of a tenancy at sufferance and in no
event for month-to-month or year-to-year. Tenant shall, throughout the entire
holdover period, be subject to all the terms and provisions of this Lease and
shall pay for its use and occupancy an amount (on a per month basis without
reduction for any partial months during any such holdover) equal to one hundred
fifty percent (150%) of the Base Rental and Additional Base Rental due for the
period immediately preceding such holding over, provided that in no event shall
Base Rental and Additional Base Rental during the holdover period be less than
the fair market rental for the Premises. No holding over by Tenant or payments
of money by Tenant to Landlord after the expiration of the term of this Lease
shall be construed to extend the Lease Term, to create a tenancy-at-will under
Georgia law, or prevent Landlord from recovery of immediate possession of the
Premises by summary proceedings or otherwise. In addition to the obligation to
pay the amounts set forth above during any such holdover period, Tenant also
shall be liable to Landlord for all damage, including any consequential damage,
which Landlord may suffer by reason of any holding over by Tenant, and Tenant
shall indemnify Landlord against any and all claims made by any other tenant or
prospective tenant against Landlord for delay by Landlord in delivering
possession of the Premises to such other tenant or prospective tenant.
Notwithstanding the foregoing, Tenant shall not be liable for consequential
damages unless: (1) Landlord notifies Tenant that it has entered into a lease
for the Premises or has received a bona fide offer to lease the Premises; and
(2) Tenant fails to vacate the Premises within ten (10) days after the date of
Landlord's notice.
XXX. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
A. Tenant accepts this Lease subject and subordinate to any
mortgage(s), deed(s) of trust, ground lease(s) or other lien(s)
now or subsequently arising upon the Premises, the Building or
the Property, and to renewals, modifications,
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refinancings and extensions thereof (collectively referred to as
a "Mortgage"). The party having the benefit of a Mortgage shall
be referred to as a "Mortgagee". This clause shall be
self-operative, but upon request from a Mortgagee, Tenant shall
execute a commercially reasonable subordination agreement in
favor of the Mortgagee. In lieu of having the Mortgage be
superior to this Lease, a Mortgagee shall have the right at any
time to subordinate its Mortgage to this Lease. If requested by a
successor-in-interest to all or a part of Landlord's interest in
the Lease, Tenant shall, without charge, attorn to the
successor-in-interest. Notwithstanding the foregoing, upon
written request by Tenant, Landlord will use reasonable efforts
to obtain a non-disturbance, subordination and attornment
agreement from Landlord's then current Mortgagee on such
Mortgagee's then current standard form of agreement. "Reasonable
efforts" of Landlord shall not require Landlord to incur any
cost, expense or liability to obtain such agreement, it being
agreed that Tenant shall be responsible for any fee or review
costs charged by the Mortgagee. Upon request of Landlord, Tenant
will execute the Mortgagee's form of non-disturbance,
subordination and attornment agreement and return the same to
Landlord for execution by the Mortgagee. Landlord's failure to
obtain a non-disturbance, subordination and attornment agreement
for Tenant shall have no effect on the rights, obligations and
liabilities of Landlord and Tenant or be considered to be a
default by Landlord hereunder. Landlord hereby represents and
covenants to Tenant that, as of the date of this Lease, the
Building is not subject to a loan secured by a Mortgage.
B. Landlord and Tenant shall each, within 10 days after receipt of a
written request from the other, execute and deliver an estoppel
certificate to those parties as are reasonably requested by the
other (including a Mortgagee or prospective purchaser). The
estoppel certificate shall include a statement certifying that
this Lease is unmodified (except as identified in the estoppel
certificate) and in full force and effect, describing the dates
to which Rent and other charges have been paid, representing
that, to such party's actual knowledge, there is no default (or
stating the nature of the alleged default) and indicating other
matters with respect to the Lease that may reasonably be
requested.
XXXI. ATTORNEYS' FEES.
If either party institutes a suit against the other for violation of
or to enforce any covenant or condition of this Lease, or if either party
intervenes in any suit in which the other is a party to enforce or protect its
interest or rights, the prevailing party shall be entitled to all of its costs
and expenses, including, without limitation, reasonable attorneys' fees.
XXXII. NOTICE.
Whenever any demand, request, approval, consent or notice ("Notice")
shall or may be given to either of the parties by the other, each such Notice
shall be in writing and shall be sent by hand delivery or by registered or
certified mail with return receipt requested, or sent by overnight courier
service (such as Federal Express) at the respective addresses of the parties for
notices as set forth in Section I.A.10. of this Lease, provided that if Tenant
has vacated the Premises or is in default of this Lease Landlord may serve
Notice by any manner permitted by law. Any Notice under this Lease delivered by
registered or certified mail shall be deemed to have been given, delivered,
received and effective on the earlier of (a) the third day following the day on
which the same shall have been mailed with sufficient postage prepaid or (b) the
delivery date indicated on the return receipt. Notice effected by hand delivery
shall be deemed to have been received upon the earlier of actual receipt or
refusal thereof. Notice sent by overnight courier service shall be deemed given,
delivered, received and effective upon the day after such notice is delivered to
or picked up by the overnight courier service. Either party may, at any time,
change its Notice Address by giving the other party Notice stating the change
and setting forth the new address.
XXXIII. LANDLORD'S LIEN.
INTENTIONALLY OMITTED.
XXXIV. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs, (2) telephone, electrical and
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janitorial closets, (3) equipment rooms, Building risers or similar areas that
are used by Landlord for the provision of Building services, (4) rights to the
land and improvements below the floor of the Premises, (5) the improvements and
air rights above the Premises, (6) the improvements and air rights outside the
demising walls of the Premises, and (7) so long as Tenant's ability to use the
Premises for the Permitted Use is not materially affected, the areas within the
Premises used for the installation of utility lines and other installations
serving occupants of the Building. Landlord has the right to change the
Building's name or address. Landlord also has the right to make such other
changes to the Property and Building as Landlord deems appropriate, provided the
changes do not materially affect Tenant's ability to use the Premises for the
Permitted Use. Landlord shall also have the right (but not the obligation) to
temporarily close the Building if Landlord reasonably determines that there is
an imminent danger of significant damage to the Building or of personal injury
to Landlord's employees or the occupants of the Building. The circumstances
under which Landlord may temporarily close the Building shall include, without
limitation, electrical interruptions, hurricanes and civil disturbances. A
closure of the Building under such circumstances shall not constitute a
constructive eviction nor entitle Tenant to an abatement or reduction of Rent.
XXXV. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's
right of possession hereunder, Tenant shall remove all Tenant's Property from
the Premises, remove all Required Removables designated by Landlord and quit and
surrender the Premises to Landlord, broom clean, and in good order, condition
and repair, ordinary wear and tear, casualty and condemnation excepted. If
Tenant fails to remove any of Tenant's Property within two (2) days after the
termination of this Lease or Tenant's right to possession hereunder, Landlord,
at Tenant's sole cost and expense, shall be entitled to remove and/or store such
Tenant's Property and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. Tenant shall pay Landlord, upon demand, any
and all reasonable expenses caused by such removal and all storage charges
against such property so long as the same shall be in the possession of Landlord
or under the control of Landlord. In addition, if Tenant fails to remove any
Tenant's Property from the Premises or storage, as the case may be, within ten
(10) days after written notice from Landlord, Landlord, at its option, may deem
all or any part of such Tenant's Property to have been abandoned by Tenant and
title thereof shall immediately pass to Landlord.
XXXVI. MISCELLANEOUS.
A. If any term or provision of this Lease, or the application
thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of
this Lease shall be valid and enforced to the fullest extent
permitted by law. This Lease represents the result of
negotiations between Landlord and Tenant, each of which has been
(or has had opportunity to be) represented by counsel of its own
selection, and neither of which has acted under duress or
compulsion, whether legal, economic or otherwise. Consequently,
Landlord and Tenant agree that the language in all parts of the
Lease shall in all cases be construed as a whole according to its
fair meaning and neither strictly for nor against Landlord or
Tenant.
B. Tenant agrees not to record this Lease or any memorandum hereof
without Landlord's prior written consent.
C. This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced in accordance with
the laws of the state in which the Building is located.
D. Events of "Force Majeure" shall include strikes, riots, war, acts
of God, and shortages of labor or materials. Whenever a period of
time is herein prescribed for the taking of any action by
Landlord or Tenant, as the case may be, other than the payment of
Rent or any other sums due hereunder, such party shall not be
liable or responsible for, and there shall be excluded from the
computation of such period of time, any delays due to events of
Force Majeure.
E. Landlord shall have the right to transfer and assign, in whole or
in part, all of its rights and obligations hereunder and in the
Building and Property referred to herein, and in such event and
upon such transfer Landlord shall be released
33
from any further obligations hereunder, and Tenant agrees to look
solely to such successor in interest of Landlord for the
performance of such obligations.
F. Tenant hereby represents to Landlord that it has dealt directly
with and only with the Broker as a broker in connection with this
Lease. Tenant agrees to indemnify and hold Landlord and the
Landlord Related Parties harmless from all claims of any brokers
claiming to have represented Tenant in connection with this
Lease. Landlord agrees to indemnify and hold Tenant and the
Tenant Related Parties harmless from all claims of any brokers
claiming to have represented Landlord in connection with this
Lease. Landlord agrees to pay Tenant's Broker any commission due
Tenant's Broker in connection with this Lease pursuant to the
terms of a separate written agreement between Landlord and
Tenant's Broker.
G. If there is more than one Tenant, or if the Tenant is comprised
of more than one person or entity, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of all
such parties. All notices, payments, and agreements given or made
by, with or to any one of such persons or entities shall be
deemed to have been given or made by, with or to all of them.
H. 1. Tenant covenants, warrants and represents that: (a) each
individual executing, attesting and/or delivering this Lease on
behalf of Tenant is authorized to do so on behalf of Tenant; (b)
this Lease is binding upon Tenant; and (c) Tenant is duly
organized and legally existing in the state of its organization
and is qualified to do business in the state in which the
Premises are located.
2. Landlord hereby covenants, warrants and represents that: (a)
each individual executing, attesting and/or delivering this Lease
on behalf of Landlord is authorized to do so on behalf of
Landlord; (b) this Lease is binding upon Landlord; and (c)
Landlord is duly organized and legally existing in the state of
its organization and is qualified to do business in the state in
which the Premises are located.
I. Tenant acknowledges that the financial capability of Tenant to
perform its obligations hereunder is material to Landlord and
that Landlord would not enter into this Lease but for its belief,
based on its review of Tenant's financial statements, that Tenant
is capable of performing such financial obligations. Tenant
hereby represents, warrants and certifies to Landlord that its
financial statements previously furnished to Landlord were at the
time given true and correct in all material respects and that
there have been no material subsequent changes thereto as of the
date of this Lease. At any time during the Lease Term, Tenant
shall provide Landlord, upon ten (10) days' prior written notice
from Landlord, with a current financial statement and financial
statements of the two (2) years prior to the current financial
statement year and such other information as Landlord or its
Mortgagee may request in order to create a "business profile" of
Tenant and determine Tenant's ability to fulfill its obligations
under this Lease. Such statement shall be prepared in accordance
with generally accepted accounting principles and certified by
Tenant's chief financial officer.
J. Except as expressly otherwise herein provided, with respect to
all required acts of Tenant, time is of the essence of this
Lease. This Lease shall create the relationship of Landlord and
Tenant between the parties hereto. Tenant has only a usufruct,
not subject to purchase or sale, which may not be assigned by
Tenant except as expressly provided in this Lease.
K. This Lease and the covenants and conditions herein contained
shall inure to the benefit of and be binding upon Landlord and
Tenant and their respective permitted successors and assigns.
L. Notwithstanding anything to the contrary contained in this Lease,
the expiration of the Lease Term, whether by lapse of time or
otherwise, shall not relieve Tenant from Tenant's obligations
accruing prior to the expiration of the Lease Term, and such
obligations shall survive any such expiration or other
termination of the Lease Term.
34
M. The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no affect upon the construction
or interpretation of any part hereof.
N. LANDLORD HAS DELIVERED A COPY OF THIS LEASE TO TENANT FOR
TENANT'S REVIEW ONLY, AND THE DELIVERY HEREOF DOES NOT CONSTITUTE
AN OFFER TO TENANT OR OPTION. THIS LEASE SHALL NOT BE EFFECTIVE
UNTIL AN ORIGINAL OF THIS LEASE EXECUTED BY BOTH LANDLORD AND
TENANT AND AN ORIGINAL GUARANTY, IF ANY, EXECUTED BY EACH
GUARANTOR IS DELIVERED TO AND ACCEPTED BY LANDLORD, AND THIS
LEASE HAS BEEN APPROVED BY LANDLORD'S MORTGAGEES, IF REQUIRED.
O. QUIET ENJOYMENT. Tenant shall, and may peacefully have, hold, and
enjoy the Premises, subject to the other terms of this Lease
(including, without limitation, Article XXX hereof), without
hindrance or molestation by Landlord or anyone claiming by,
through or under Landlord, provided that Tenant pays the Rent
herein recited to be paid by Tenant and performs all of Tenant's
covenants and agreements herein contained. This covenant and any
and all other covenants of Landlord shall be binding upon
Landlord and its successors only during its or their respective
periods of ownership of the Landlord's interest hereunder.
XXXVII. ENTIRE AGREEMENT.
This Lease Agreement, including the following Exhibits:
EXHIBIT A -Outline and Location of Premises
EXHIBIT A-1 -Outline and Location of Refusal Space
EXHIBIT B -Rules and Regulations
EXHIBIT C -Commencement Letter (Intentionally Omitted)
EXHIBIT D -Work Letter Agreement
EXHIBIT D-1 -Base Building Work in Premises
EXHIBIT E -Additional Provisions
EXHIBIT F -Form of Letter of Credit
EXHIBIT G -Critical Date Schedule
constitutes the entire agreement between the parties hereto with respect to the
subject matter of this Lease and supersedes all prior agreements and
understandings between the parties related to the Premises, including all lease
proposals, letters of intent and similar documents. TENANT EXPRESSLY
ACKNOWLEDGES AND AGREES THAT LANDLORD HAS NOT MADE AND IS NOT MAKING, AND
TENANT, IN EXECUTING AND DELIVERING THIS LEASE, IS NOT RELYING UPON, ANY
WARRANTIES, REPRESENTATIONS, PROMISES OR STATEMENTS, EXCEPT TO THE EXTENT THAT
THE SAME ARE EXPRESSLY SET FORTH IN THIS LEASE. ALL UNDERSTANDINGS AND
AGREEMENTS HERETOFORE MADE BETWEEN THE PARTIES ARE MERGED IN THIS LEASE WHICH
ALONE FULLY AND COMPLETELY EXPRESSES THE AGREEMENT OF THE PARTIES, NEITHER PARTY
RELYING UPON ANY STATEMENT OR REPRESENTATION NOT EMBODIED IN THIS LEASE. THIS
LEASE MAY BE MODIFIED ONLY BY A WRITTEN AGREEMENT SIGNED BY LANDLORD AND TENANT.
LANDLORD AND TENANT EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED
WARRANTIES OF MERCHANTABILITY, HABITABILITY, SUITABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, ALL OF WHICH
ARE HEREBY WAIVED BY TENANT, AND THAT THERE ARE NO WARRANTIES WHICH EXTEND
BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.
35
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD:
EOP-BUCKHEAD, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: VP Leasing
----------------------------------
TENANT:
VIEWLOCITY, INC., A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior VP and CFO
---------------------------------
36
EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
This Exhibit is attached to and made a part of the Lease dated
_____________, 1999, by and between EOP-BUCKHEAD, L.L.C. ("Landlord") and
VIEWLOCITY, INC. ("Tenant") for space in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
37
EXHIBIT A-1
OUTLINE AND LOCATION OF REFUSAL SPACE
This Exhibit is attached to and made a part of the Lease dated
_____________, 1999, by and between EOP-BUCKHEAD, L.L.C. ("Landlord") and
VIEWLOCITY, INC. ("Tenant") for space in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
38
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage associated therewith (if any), the
Property and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material of any nature shall be placed, emptied, or thrown in
those areas. At no time shall Tenant permit Tenant's employees to loiter in
common areas or elsewhere in or about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from misuse by Tenant or its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not in any case
be responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on or to
any windows, doors or other parts of the Building, except those of such
color, size, style and in such places as shall be first approved in writing
by Landlord. Except in connection with the hanging of lightweight pictures,
decorations and wall hangings, no nails, hooks or screws shall be driven or
inserted into any part of the Premises or Building except by the Building
maintenance personnel, nor shall any part of the Building be defaced by
Tenant.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board listing all Tenants, and no other
directory shall be permitted unless previously consented to by Landlord in
writing.
5. Tenant shall not place any additional lock or locks on any door in the
Premises or Building without Landlord's prior written consent. A reasonable
number of keys to the locks on the doors in the Premises shall be furnished
by Landlord to Tenant at the cost of Tenant, and Tenant shall not have any
duplicate keys made. All keys shall be returned to Landlord at the
expiration or earlier termination of this Lease.
6. All contractors, contractor's representatives, and installation technicians
performing work in the Building shall be subject to Landlord's prior
approval and shall be required to comply with Landlord's standard rules,
regulations, policies and procedures, as the same may be revised from time
to time. Tenant shall be solely responsible for complying with all
applicable laws, codes and ordinances pursuant to which said work shall be
performed.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which require
the use of elevators, stairways, lobby areas, or loading dock areas, shall
be restricted to hours designated by Landlord. Tenant must seek Landlord's
prior approval by providing in writing a detailed listing of any such
activity. If approved by Landlord, such activity shall be under the
supervision of Landlord and performed in the manner stated by Landlord.
Landlord may prohibit any article, equipment or any other item from being
brought into the Building. Tenant is to assume all risk for damage to
articles moved and injury to any persons resulting from such activity. If
any equipment, property, and/or personnel of Landlord or of any other
tenant is damaged or injured as a result of or in connection with such
activity, Tenant shall be solely liable for any and all damage or loss
resulting therefrom.
8. Landlord shall have the power to prescribe the weight and position of safes
and other heavy equipment or items, which in all cases shall not in the
opinion of Landlord exceed acceptable floor loading and weight distribution
requirements. All damage done to the Building by the installation,
maintenance, operation, existence or removal of any property of Tenant
shall be repaired at the expense of Tenant.
9. Corridor doors, when not in use, shall be kept closed.
39
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise unreasonably
interfere in any way with other tenants or persons having business with
them; (2) solicit business or distribute, or cause to be distributed, in
any portion of the Building any handbills, promotional materials or other
advertising; or (3) conduct or permit any other activities in the Building
that constitutes a nuisance.
11. No animals, except seeing eye dogs, shall be brought into or kept in, on or
about the Premises.
12. No inflammable, explosive or dangerous fluid or substance shall be used or
kept by Tenant in the Premises or Building. Except for those substances as
are typically found in similar premises used for general business office
purposes and are being used by Tenant in accordance with all applicable
laws, rules and regulations, Tenant shall not, without Landlord's prior
written consent, use, store, install, spill, remove, release or dispose of
within or about the Premises or any other portion of the Property, any
asbestos-containing materials or any solid, liquid or gaseous material now
or hereafter considered toxic or hazardous under the provisions of 42
U.S.C. Section 9601 et seq. or any other applicable environmental law which
may now or hereafter be in effect. If Landlord does give written consent to
Tenant pursuant to the foregoing sentence, Tenant shall comply with all
applicable laws, rules and regulations pertaining to and governing such use
by Tenant, and shall remain liable for all costs of cleanup or removal in
connection therewith.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or future
value of the Premises or the Building; without limiting the foregoing,
Tenant shall not use or permit the Premises or any portion thereof to be
used for lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts affecting the Building or which would cause any work stoppage,
picketing, labor disruption or dispute, or any interference with the
business of Landlord or any other tenant or occupant of the Building or
with the rights and privileges of any person lawfully in the Building.
Tenant shall take any actions necessary to resolve any such work stoppage,
picketing, labor disruption, dispute or interference and shall have pickets
removed and, at the request of Landlord, immediately terminate at any time
any construction work being performed in the Premises giving rise to such
labor problems, until such time as Landlord shall have given its written
consent for such work to resume. Tenant shall have no claim for damages of
any nature against Landlord or any of the Landlord Related Parties in
connection therewith, nor shall the date of the commencement of the Term be
extended as a result thereof.
15. Tenant shall utilize the termite and pest extermination service designated
by Landlord to control termites and pests in the Premises. Except as
included in Basic Costs, Tenant shall bear the cost and expense of such
extermination services.
16. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, any electrical equipment which does not bear
the U/L (Underwriters Laboratories) seal of approval, or which would
overload the electrical system or any part thereof beyond its capacity for
proper, efficient and safe operation as determined by Landlord, taking into
consideration the overall electrical system and the present and future
requirements therefor in the Building. Tenant shall not furnish any cooling
or heating to the Premises, including, without limitation, the use of any
electronic or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines available to service the Building.
17. Tenant shall not operate or permit to be operated on the Premises any coin
or token operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy, cigarettes or other goods),
except for those vending machines or similar devices which are for the sole
and exclusive use of Tenant's employees, and then only if such operation
does not violate the lease of any other tenant of the Building.
18. Bicycles and other vehicles are not permitted inside or on the walkways
outside the Building, except in those areas specifically designated by
Landlord for such purposes.
40
19. Landlord may from time to time adopt appropriate systems and procedures for
the security or safety of the Building, its occupants, entry and use, or
its contents. Tenant, Tenant's agents, employees, contractors, guests and
invitees shall comply with Landlord's reasonable requirements relative
thereto.
20. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion may
tend to impair the reputation of the Building or its desirability for
Landlord or other tenants. Upon written notice from Landlord, Tenant will
refrain from and/or discontinue such publicity immediately.
21. Tenant shall carry out Tenant's permitted repair, maintenance, alterations,
and improvements in the Premises only during times agreed to in advance by
Landlord and in a manner which will not unreasonably interfere with the
rights of other tenants in the Building.
22. Canvassing, soliciting, and peddling in or about the Building is
prohibited. Tenant shall cooperate and use its best efforts to prevent the
same.
23. At no time shall Tenant permit or shall Tenant's agents, employees,
contractors, guests, or invitees smoke in any common area of the Building,
unless such common area has been declared a designated smoking area by
Landlord, or to allow any smoke from the Premises to emanate into the
common areas or any other tenant's premises. Landlord shall have the right
at any time to designate the Building as a non-smoking building.
24. Tenant shall observe Landlord's rules with respect to maintaining standard
window coverings at all windows in the Premises so that the Building
presents a uniform exterior appearance. Tenant shall ensure that to the
extent reasonably practicable, window coverings are closed on all windows
in the Premises while they are exposed to the direct rays of the sun.
25. All deliveries to or from the Premises shall be made only at such times, in
the areas and through the entrances and exits designated for such purposes
by Landlord. Tenant shall not permit the process of receiving deliveries to
or from the Premises outside of said areas or in a manner which may
unreasonably interfere with the use by any other tenant of its premises or
of any common areas, any pedestrian use of such area, or any use which is
inconsistent with good business practice.
26. The work of cleaning personnel shall not be hindered by Tenant after 5:30
P.M., and such cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles necessary to prevent
unreasonable hardship to Landlord regarding cleaning service.
41
EXHIBIT C
COMMENCEMENT LETTER
INTENTIONALLY OMITTED
42
EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of the Lease dated
____________, 1999, by and between EOP-BUCKHEAD, L.L.C. ("Landlord") and
VIEWLOCITY, INC. ("Tenant") for space in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the preparation of the Premises for Tenant's occupancy. All
improvements described in this Work Letter to be constructed in and upon
the Premises by Landlord are hereinafter referred to as the "Landlord
Work." It is agreed that construction of the Landlord Work will be
completed at Tenant's sole cost and expense, subject to the Allowance (as
defined below). Landlord shall also perform the Base Building Work in the
Premises (as described in EXHIBIT D-1) at Landlord's sole cost and expense,
subject to and in accordance with the terms of EXHIBIT D-1. Any portion of
the Base Building Work or other work described in EXHIBIT D-1 which is to
be performed at Tenant's cost may be applied by Tenant against the
Allowance described herein. Landlord shall enter into a direct contract for
the Landlord Work with ▇▇▇▇▇▇ Contracting Inc. In addition, Landlord shall
have the right to select and/or approve of any subcontractors used in
connection with the Landlord Work. Landlord acknowledges that Landlord and
its affiliates have previously bid general tenant improvement work
performed in office buildings owned by Landlord and/or its affiliates in
the Atlanta area. Such bids were obtained from at least five (5) different
general contractors, and included unit pricing, and a construction
management fee of four and one-half percent (4.5%) and an additional fee of
two and 45/100 percent (2.45%).
2. Tenant shall be solely responsible for the timely preparation and
submission to Landlord of the final architectural, electrical and
mechanical construction drawings, plans and specifications (called "Plans")
necessary to construct the Landlord Work, which plans shall be subject to
approval by Landlord and Landlord's architect and engineers and shall
comply with their requirements to avoid aesthetic or other conflicts with
the design and function of the balance of the Building. Tenant shall be
responsible for all elements of the design of Tenant's plans (including,
without limitation, compliance with law, functionality of design, the
structural integrity of the design, the configuration of the premises and
the placement of Tenant's furniture, appliances and equipment), and
Landlord's approval of Tenant's plans shall in no event relieve Tenant of
the responsibility for such design. If requested by Tenant, Landlord's
architect will prepare the Plans necessary for such construction at
Tenant's cost. Whether or not the layout and Plans are prepared with the
help (in whole or in part) of Landlord's architect, Tenant agrees to remain
solely responsible for the timely preparation and submission of the Plans
and for all elements of the design of such Plans and for all costs related
thereto. Tenant has assured itself by direct communication with the
architect and engineers (Landlord's or its own, as the case may be) that
the final approved Plans (i.e. approved by Tenant and Landlord and in
condition required for submittal for a building permit) can be delivered to
Landlord on or before August 23, 1999 (the "Plans Due Date"), provided that
Tenant promptly furnishes complete information concerning its requirements
to said architect and engineers as and when requested by them. Landlord
agrees that Landlord shall review and comment on, as necessary, each
submittal of Plans within five (5) Business Days after Landlord's receipt
of each such Plans submittal, and Tenant shall take this time period(s)
into consideration when determining whether it can deliver final approved
Plans by the Plans Due Date. Tenant covenants and agrees to cause said
final, approved Plans to be delivered to Landlord on or before said Plans
Due Date and to devote such time as may be necessary in consultation with
said architect and engineers to enable them to complete and submit the
Plans within the required time limit. Time is of the essence in respect of
preparation and submission of Plans by Tenant. In the event the Plans are
not fully completed and approved by the Plans Due Date, Tenant shall be
responsible for one (1) day of Tenant Delay (as defined in the Lease) for
each day during the period beginning on the day following the Plans Due
Date and ending on the date completed Plans are approved. (The word
"architect" as used in this EXHIBIT D shall include an interior designer or
space planner.)
3. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, Landlord, prior to commencing any construction
of Landlord Work, shall submit to Tenant a written estimate setting forth
the anticipated cost of the Landlord Work, including but not limited to
labor and materials, contractor's fees and permit fees. Within three (3)
Business Days thereafter, Tenant shall either notify Landlord in writing
43
of its approval of the cost estimate, or specify its objections thereto and
any desired changes to the proposed Landlord Work. In the event Tenant
notifies Landlord of such objections and desired changes, Tenant shall work
with Landlord to reach a mutually acceptable alternative cost estimate.
4 In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, if any (such amounts exceeding the Allowance
being herein referred to as the "Excess Costs"), Tenant shall pay to
Landlord such Excess Costs, plus any applicable state sales or use tax
thereon, upon demand, in accordance with the following: 50% of the Excess
Costs shall be paid prior to Landlord commencing any Landlord Work and the
balance of any Excess Costs shall be paid upon completion of the Landlord
Work. The statements of costs submitted to Landlord by Landlord's
contractors shall be conclusive for purposes of determining the actual cost
of the items described therein. The amounts payable by Tenant hereunder
constitute Rent payable pursuant to the Lease, and the failure to timely
pay same constitutes an event of default under the Lease.
5. If Tenant shall request any change, addition or alteration in any of the
Plans after approval by Landlord, Landlord shall have such revisions to the
drawings prepared, and Tenant shall reimburse Landlord for the cost
thereof, plus any applicable state sales or use tax thereon, upon demand.
Promptly upon completion of the revisions, Landlord shall notify Tenant in
writing of the increased cost which will be chargeable to Tenant by reason
of such change, addition or deletion. Tenant, within three (3) Business
Days, shall notify Landlord in writing whether it desires to proceed with
such change, addition or deletion. In the absence of such written
authorization, Landlord shall have the option to continue work on the
Premises disregarding the requested change, addition or alteration, or
Landlord may elect to discontinue work on the Premises until it receives
notice of Tenant's decision, in which event Tenant shall be responsible for
any Tenant Delay in completion of the Premises resulting therefrom. In the
event such revisions result in a higher estimate of the cost of
construction and/or higher actual construction costs which exceed the
Allowance, such increased estimate or costs shall be deemed Excess Costs
pursuant to Paragraph 4 hereof and Tenant shall pay such Excess Costs, plus
any applicable state sales or use tax thereon, upon demand, in accordance
with the schedule described in Section 4 above, provided, however, if
Landlord has commenced the Landlord Work, then the initial 50% of the
additional Excess Costs described in this Section 5 shall be immediately
payable.
6. Following approval of the Plans and the payment by Tenant of the required
portion of the Excess Costs, if any, Landlord shall obtain the permits for
the Landlord Work and cause the Landlord Work to be constructed
substantially in accordance with the approved Plans. Landlord shall notify
Tenant of substantial completion of the Landlord Work.
7. Landlord, provided Tenant is not in default, agrees to provide Tenant with
an allowance (the "Allowance") in an amount not to exceed $30.00 per
rentable square foot of the Premises to be applied toward the cost of the
Landlord Work in the Premises. If the Allowance shall not be sufficient to
complete the Landlord Work, Tenant shall pay the Excess Costs, plus any
applicable state sales or use tax thereon, as prescribed in paragraph 4
above. If the Allowance exceeds the cost of Landlord Work, any remaining
Allowance ("Unused Allowance") shall accrue to the sole benefit of
Landlord, it being agreed that, subject to the following, Tenant shall not
be entitled to any credit, offset, abatement or payment with respect
thereto; provided, however, upon completion of the Landlord Work and
payment of all costs related thereto, Landlord shall apply up to 50% of the
Unused Allowance (but in no event more than $1.50 per rentable square foot
contained in the initial Premises) against the second and subsequent
installments of Base Rental and Additional Base Rental due under this
Lease. Landlord shall be entitled to deduct from the Allowance a
construction management fee for Landlord's oversight of the Landlord Work
in an amount equal to four and one-half percent (4.5%) of the total cost of
the Landlord Work.
8. In addition to the above described Allowance, Landlord, provided Tenant is
not in default, agrees to be responsible for the cost to prepare the
initial preliminary space plan and one (1) revision thereto (up to a
maximum cost of $0.10 per rentable square foot in the initial Premises)
(the "Space Planning Allowance") and Tenant shall be responsible for all
other costs incurred in connection with the preparation of the preliminary
space plans. The Space Planning Allowance shall be paid to Tenant
concurrent with the first
44
disbursement of the Allowance, or, at Landlord's election, the Space
Planning Allowance may be applied against the Excess Costs to be paid by
Tenant.
9. FINANCE OF EXCESS COSTS. If Tenant has used the entire Allowance as
provided herein, Tenant, provided it is not in default under this Lease,
shall have the right to borrow up to $5.00 per rentable square foot in the
initial Premises (the "Additional Allowance") from Landlord in order to
finance the Excess Costs during the initial Lease Term. Any Additional
Allowance borrowed by Tenant hereunder shall be repaid to Landlord as
Additional Base Rental in equal monthly installments throughout the initial
Lease Term at an interest rate equal to thirteen percent (13%) per annum.
If Tenant is in default under this Lease after the expiration of applicable
cure periods, the entire unpaid balance of the Additional Allowance
borrowed by Tenant shall become immediately due and payable and, except to
the extent required by applicable law, shall not be subject to mitigation
or reduction in connection with a reletting of the Premises by Landlord.
10. This EXHIBIT D shall not be deemed applicable to any additional space added
to the original Premises at any time or from time to time, whether by any
options under the Lease or otherwise, or to any portion of the original
Premises or any additions to the Premises in the event of a renewal or
extension of the original Term of this Lease, whether by any options under
the Lease or otherwise, unless expressly so provided in the Lease or any
amendment or supplement to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of
the day and year first above written.
LANDLORD:
EOP-BUCKHEAD, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
TENANT:
VIEWLOCITY, INC., A DELAWARE CORPORATION
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
45
EXHIBIT D-1
BASE BUILDING WORK IN OR AFFECTING THE PREMISES
This Exhibit is attached to and made a part of the Lease dated ____________,
1999, by and between EOP-BUCKHEAD, L.L.C. ("Landlord") and VIEWLOCITY, INC.
("Tenant") for space in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇.
EXTERIOR WALLS:
Glazing: Floor to ceiling painted extruded aluminum "window
wall" system with an 8" interior knee wall, allowing
for flexible installation of telephone, electrical and
data cabling along the perimeter wall. Energy efficient
1" tinted "Low-E" vision glass provides Class "A"
system performance and appearance.
Mini-Blinds: 1" horizontal mini-blinds on all exterior windows,
except at the lobby level.
MECHANICAL SYSTEM FOR BUILDING:
General Description: Direct Digital Control (DDC) Energy Management System
(EMS) controlled mechanical system.
Design Criteria: The HVAC equipment maintains conditions to plus or
minus 1%, based upon Georgia Energy Code and the local
conditions specified in the 1997 edition of ASHRAE
Handbook of Fundamentals:
SUMMER: 75(Degree)F@ 50% max. relative humidity
interior, based upon outside conditions of
94(Degree)F dry bulb and 74(Degree)F wet bulb.
WINTER: 72(Degree)F interior, based upon outside
conditions of 22 (Degree)F dry bulb.
The foregoing criteria is based upon the Building
standard usage of electricity and lighting and is based
upon a maximum of 150 square feet occupied per person
System Equipment: A two-cell, induced draft cooling tower with a motor in
each cell. Water-cooled self-contained air-conditioned
VAV units are connected to medium pressure duct.
Primary conditioned air is distributed to the VAV/PIU
units through medium pressure ductwork, perimeter
low-pressure ductwork, perimeter slots and perforated
metal diffusers. Exterior building zones are
conditioned with PIU units with electric heat. Interior
zones are conditioned with cooling only VAV units. The
core zones are conditioned with constant volume PIU
units with heat.
Tenant is responsible for installing interior HVAC
diffusers (but not exterior diffusers, which are part
of Base Building Work), and the balancing of HVAC
system serving the Premises once the tenant
improvements in the Premises are in place.
LIFE SAFETY SYSTEM FOR BUILDING:
General Description: Base Building fire alarm system complying with all
applicable NFPA requirements for shell building
including life safety emergency lighting, exit signs,
annunciators,
46
smoke detectors, emergency generator, etc. on a full
floor, non-partitioned basis.
All heated areas of the building will have a "wet-pipe"
sprinkler system configured on a full floor,
non-partitioned basis with up-right turned up.
BUILDING CORE:
Gypsum Board Walls: Typical core partitions: 3 5/8" metal studs at 24" o.c.
with 5/8" gypsum wallboard.
Wood Doors: Building standard doors are white birch 3'0", full
height premium pre-finished stain grade solid core wood
doors.
Frames: Frames at service level will be hollow metals, all
others will be aluminum.
Hardware: Building standard hardware will be a satin finish
chrome plated lever design with mortise lock sets.
Plumbing: One domestic water heater with a re-circulating line
provides hot water on four to five floor intervals. Two
wet columns are available on each floor.
Power: Busway at 480/277 volts extending from the main
switchboard to the electrical rooms on each floor.
Junction box grid system on every floor for future
tenant lighting receptacles.
Telephone: Telephone closets on each floor with grounded
backboards.
Metering: Available based on tenant requirements.
Exit & Emergency Exits: Emergency fixtures shall be located on a full floor,
non-partitioned basis in stairwells, corridors,
building exits, lobbies, and toilet rooms
BASE BUILDING "ABOVE THE CEILING" DEFINITION:
Ceiling: Acoustical tile ceiling is suspended 9'0" above the
finished floor. Acoustical tile are 2'-0" x 2'-0"
Eclipse by USG (or equal) with ▇▇▇▇ Fineline grid by
USG (or equal). Tiles and light fixtures are stacked on
the floor for installation by the tenant as a part of
the tenant improvement installation. The grid is
installed as a part of base building.
Lighting: The tenant spaces will be provided with 2'x4', 3 lamp,
18 cell recessed troffer, 3" deep parabolic lenses and
electronic ballast using T8 octron lamps. Base building
fixtures are allotted at a ratio of approximately one
fixture per 100 usable square feet of the premises and
will be stacked on the floor and installed by the
tenant as part of the tenant improvement installation.
Fire Sprinkler: Office sprinkler heads are upright turned heads at the
concrete deck (1/225 usable square feet). The
relocation of existing heads or any additional heads
necessitated by the tenant's plan shall be provided by
tenant as part of the tenant improvement installation.
Electrical: A tenant grid system supporting 120 volt receptacle
power and 277 volt lighting will be installed on each
floor. This system will consist of junction boxes
located approximately 30' centers connected via a
disconnect 75 KVA transformer; 100 amp lighting panel
and a 225 amp double
47
section receptacle panel. Each junction box will
contain branch circuiting capable of supporting the
following load densities: receptacle power of 5 ▇▇▇▇▇
per usable square foot on a connected load basis and
lighting of 2 ▇▇▇▇▇ per usable square foot.
Window Sill: An 8 inch window sill condition exists below the
exterior glass to facilitate Tenant's installation of
electrical, telephone and computer cabling. The
installation and finishing of the sheetrock at said
sill as well as the installation of said electrical,
telephone and computer cabling shall be provided by
tenant as part of the tenant improvement installation.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of
the day and year first above written.
LANDLORD:
EOP-BUCKHEAD, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
TENANT:
VIEWLOCITY, INC., A DELAWARE CORPORATION
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
48
EXHIBIT E
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease dated
____________, 1999, by and between EOP-BUCKHEAD, L.L.C. ("Landlord") and
VIEWLOCITY, INC. ("Tenant") for space in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
I. PARKING.
A. During the initial Lease Term, Tenant shall have the right to lease
up to 77 unreserved parking spaces and 6 reserved spaces
(collectively, the "Spaces") in, or on the roof of, the Building
garage ("Garage") for the use of Tenant and its employees. No
deductions or allowances shall be made for days when Tenant or any
of its employees does not utilize the parking facilities or for
Tenant utilizing less than all of the Spaces. Tenant shall not have
the right to lease or otherwise use more than the number of reserved
and unreserved Spaces set forth above. In order to lease any of the
parking Spaces available to Tenant hereunder, Tenant must provide
Landlord with at least thirty (30) days prior written notice that it
desires to lease the parking Spaces in accordance with this Section.
Such notice shall specify the number of Spaces which Tenant elects
to lease hereunder (up to an aggregate of 77 unreserved parking
spaces and 6 reserved spaces). If Tenant's notice specifies less
than the maximum number of Spaces available to Tenant hereunder,
Tenant may elect to lease additional Spaces (up to a maximum
aggregate of 77 unreserved parking spaces and 6 reserved spaces) by
providing subsequent thirty (30) day notices to Landlord.
B. During the initial Lease Term, Tenant shall pay Landlord, as
Additional Base Rental in accordance with Article IV of the Lease,
the sum of $45.00 per month, plus applicable tax thereon, if any,
for each unreserved Space leased by Tenant hereunder, and the sum of
$75.00 per month, plus applicable tax thereon, if any, for each
reserved Space leased by Tenant hereunder, as such rates may be
adjusted from time-to-time to reflect the then current rate for
parking in the Garage.
C. Except for particular spaces and areas designated by Landlord for
reserved parking, all parking in the Garage and surface parking
areas serving the Building shall be on an unreserved, first-come,
first-served basis.
D. Landlord shall not be responsible for money, jewelry, automobiles or
other personal property lost in or stolen from the Garage or the
surface parking areas regardless of whether such loss or theft
occurs when the Garage or other areas therein are locked or
otherwise secured. Except as caused by the negligence or willful
misconduct of Landlord and without limiting the terms of the
preceding sentence, Landlord shall not be liable for any loss,
injury or damage to persons using the Garage or the surface parking
areas or automobiles or other property therein, it being agreed
that, to the fullest extent permitted by law, the use of the Spaces
shall be at the sole risk of Tenant and its employees.
E. Landlord shall have the right from time to time to designate the
location of the Spaces and to promulgate reasonable rules and
regulations regarding the Garage, the surface parking areas, if any,
the Spaces and the use thereof, including, but not limited to, rules
and regulations controlling the flow of traffic to and from various
parking areas, the angle and direction of parking and the like.
Tenant shall comply with and cause its employees to comply with all
such rules and regulations as well as all reasonable additions and
amendments thereto. Notwithstanding the foregoing, it is agreed that
Tenant's reserved Spaces shall not be located on the roof of the
Garage and shall be located within reasonable proximity to the
Building entrance(s).
F. Tenant shall not store or permit its employees to store any
automobiles in the Garage or on the surface parking areas without
the prior written consent of Landlord. Except for emergency repairs,
Tenant and its employees shall not perform any work on any
automobiles while located in the Garage or on the Property. If it is
necessary for Tenant or its employees to leave an automobile in the
Garage or on the surface parking areas overnight, Tenant shall
provide
49
Landlord with prior notice thereof designating the license plate
number and model of such automobile.
G. Landlord shall have the right to temporarily close the Garage or
certain areas therein in order to perform necessary repairs,
maintenance and improvements to the Garage or the surface parking
areas, if any.
H. Tenant shall not assign or sublease any of the Spaces without the
consent of Landlord, which consent shall not be unreasonably
withheld or delayed provided such assignment or subletting of Spaces
is to a permitted assignee of Tenant's rights under the Lease or a
permitted subtenant of all or a portion of the Premises and does not
exceed 3 Spaces per 1,000 rentable square feet in such portion of
the Premises. Subject to the foregoing, Landlord shall have the
right to terminate this Parking Agreement with respect to any Spaces
that Tenant desires to sublet or assign.
I. Landlord may elect to provide parking cards or keys to control
access to the Garage or surface parking areas, if any. In such
event, Landlord shall provide Tenant with one card or key for each
Space that Tenant is leasing hereunder, provided that Landlord shall
have the right to require Tenant or its employees to place a deposit
on such access cards or keys and to pay a fee for any lost or
damaged cards or keys.
J. Landlord hereby reserves the right to enter into a management
agreement or lease with an entity for the Garage ("Garage
Operator"). In such event, Tenant, upon request of Landlord, shall
enter into a parking agreement with the Garage Operator and pay the
Garage Operator the monthly charge established hereunder, and
Landlord shall have no liability for claims arising through acts or
omissions of the Garage Operator unless caused by Landlord's
negligence or willful misconduct. It is understood and agreed that
the identity of the Garage Operator may change from time to time
during the Lease Term. In connection therewith, any parking lease or
agreement entered into between Tenant and a Garage Operator shall be
freely assignable by such Garage Operator or any successors thereto.
K. Landlord agrees that, in entering into leases for the Building from
and after the date of this Lease, Landlord shall not contractually
agree to make available more than 3.5 parking spaces in the Garage
per 1,000 rentable square feet in any tenant's premises, determined
on an average basis among all leases for the Building, unless
Landlord retains the right to revoke or reclaim any parking spaces
which exceed such limit.
II. INTENTIONALLY OMITTED.
III. RENEWAL OPTION.
A. Tenant shall have the right to extend the Lease Term (the "Renewal
Option") for one additional period of five (5) years commencing on
the day following the Termination Date of the initial Lease Term and
ending on the fifth (5th) anniversary of the Termination Date (the
"Renewal Term"), if:
1. Landlord receives notice of exercise ("Initial Renewal Notice")
not less than nine (9) full calendar months prior to the
expiration of the initial Lease Term and not more than fifteen
(15) full calendar months prior to the expiration of the
initial Lease Term; and
2. Tenant is not in default under the Lease beyond any applicable
cure periods at the time that Tenant delivers its Initial
Renewal Notice or at the time Tenant delivers its Binding
Notice; and
3. No part of the Premises is sublet, other than to a Permitted
Transferee (as defined in Section XIII.E of the Lease), at the
time that Tenant delivers its Initial Renewal Notice or at the
time Tenant delivers its Binding Notice; and
4. The Lease has not been assigned, other than to a Permitted
Transferee (as defined in Section XIII.E of the Lease), prior
to the date that Tenant
50
delivers its Initial Renewal Notice or prior to the date Tenant
delivers its Binding Notice.
B. The initial Base Rental rate per rentable square foot for the
Premises during the Renewal Term shall equal the Prevailing Market
(hereinafter defined) rate per rentable square foot for the
Premises.
C. Tenant shall pay Additional Base Rental (i.e. Basic Costs) for the
Premises during the Renewal Term in accordance with Article IV of
the Lease and the Base Year(s) shall be adjusted, if at all, as part
of the determination of the Prevailing Market rate.
D. Within thirty (30) days after receipt of Tenant's Initial Renewal
Notice, Landlord shall advise Tenant of the applicable Base Rental
rate for the Premises for the Renewal Term. Tenant, within thirty
(30) days after the date on which Landlord advises Tenant of the
applicable Base Rental rate for the Renewal Term, shall either (i)
give Landlord final binding written notice ("Binding Notice") of
Tenant's exercise of its option, or (ii) if Tenant disagrees with
Landlord's determination, provide Landlord with written notice of
rejection (the "Rejection Notice"). If Tenant fails to provide
Landlord with either a Binding Notice or Rejection Notice within
such fifteen (15) day period, Tenant's Renewal Option shall be null
and void and of no further force and effect. If Tenant provides
Landlord with a Binding Notice, Landlord and Tenant shall enter into
the Renewal Amendment upon the terms and conditions set forth
herein. If Tenant provides Landlord with a Rejection Notice,
Landlord and Tenant shall work together in good faith to agree upon
the Prevailing Market rate for the Premises during the Renewal Term.
Upon agreement Tenant shall provide Landlord with Binding Notice and
Landlord and Tenant shall enter into the Renewal Amendment in
accordance with the terms and conditions hereof. Notwithstanding the
foregoing, if Landlord and Tenant fail to agree upon the Prevailing
Market rate within thirty (30) days after the date Tenant provides
Landlord with the Rejection Notice, Tenant, by written notice to
Landlord (the "Arbitration Notice") within five (5) days after the
expiration of such thirty (30) day period, shall have the right to
have the Prevailing Market rate determined in accordance with the
arbitration procedures described in Section E below. If Landlord and
Tenant fail to agree upon the Prevailing Market rate within the
thirty (30) day period described and Tenant fails to exercise its
right to arbitrate, Tenant's Renewal Option shall be deemed to be
null and void and of no further force and effect.
E. ARBITRATION PROCEDURE.
1. If Tenant provides Landlord with an Arbitration Notice,
Landlord and Tenant, within five (5) days after the date of the
Arbitration Notice, shall each simultaneously submit to the
other, in a sealed envelope, its good faith estimate of the
Prevailing Market rate for the Premises during the Renewal Term
(collectively referred to as the "Estimates"). If the Estimates
are not the same, then, within seven (7) days after the
exchange of Estimates, Landlord and Tenant shall each select an
appraiser to determine which of the two Estimates most closely
reflects the Prevailing Market rate for the Premises during the
Renewal Term.
Each appraiser so selected shall be certified as an MAI
appraiser or as an ASA appraiser and shall have had at least
five (5) years experience within the previous ten (10) years as
a real estate appraiser working in the Buckhead area of
Atlanta, Georgia, with working knowledge of current rental
rates and practices. For purposes of the Lease, an "MAI"
appraiser means an individual who holds an MAI designation
conferred by, and is an independent member of, the American
Institute of Real Estate Appraisers (or its successor
organization, or in the event there is no successor
organization, the organization and designation most similar),
and an "ASA" appraiser means an individual who holds the Senior
Member designation conferred by, and is an independent member
of, the American Society of Appraisers (or its successor
organization, or, in the event there is no successor
organization, the organization and designation most similar).
51
2. Upon selection, Landlord's and Tenant's appraisers shall work
together in good faith to agree upon which of the two Estimates
most closely reflects the Prevailing Market rate for the
Premises. The Estimate chosen by such appraisers shall be
binding on both Landlord and Tenant as the Base Rent rate for
the Premises, subject to the terms of Section III.E.4 below. If
either Landlord or Tenant fails to appoint an appraiser within
the seven (7) day period referred to above, the appraiser
appointed by the other party shall be the sole appraiser for
the purposes hereof. If the two appraisers cannot agree upon
which of the two Estimates most closely reflects the Prevailing
Market within twenty (20) days after their appointment, then,
within ten (10) days after the expiration of such twenty (20)
day period, the two (2) appraisers shall select a third
appraiser meeting the aforementioned criteria. Once the third
appraiser (i.e. arbitrator) has been selected as provided for
above, then, as soon thereafter as practicable but in any case
within fourteen (14) days, the arbitrator shall make his
determination of which of the two Estimates most closely
reflects the Prevailing Market rate and such Estimate shall be
binding on both Landlord and Tenant as the Base Rent rate for
the Premises. If the arbitrator believes that expert advice
would materially assist him, he may retain one or more
qualified persons to provide such expert advice. The parties
shall share equally in the costs of the arbitrator and of any
experts retained by the arbitrator. Any fees of any appraiser,
counsel or experts engaged directly by Landlord or Tenant,
however, shall be borne by the party retaining such appraiser,
counsel or expert.
3. If the Prevailing Market rate has not been determined by the
commencement date of the Renewal Term for the Premises, Tenant
shall pay Base Rent at the Minimum Renewal Term Base Rental
Rate until such time as the Prevailing Market rate has been
determined. Upon such determination, the Base Rent for the
Premises shall be retroactively adjusted to the commencement of
the Renewal Term for the Premises. If such adjustment results
in an underpayment of Base Rent by Tenant, Tenant shall pay
Landlord the amount of such underpayment within thirty (30)
days after the determination thereof. If such adjustment
results in an overpayment of Base Rent by Tenant, Landlord
shall credit such overpayment against the next installment of
Base Rent due under the Lease and, to the extent necessary, any
subsequent installments, until the entire amount of such
overpayment has been credited against Base Rent.
4. Notwithstanding anything to the contrary contained herein, the
parties hereby agree that Landlord shall not be obligated to
renew this Lease if the Prevailing Market rate for the Premises
during the Renewal Term is less than the Base Rental rate, per
rentable square foot per annum, applicable during the last year
of the initial Lease Term, plus three (3%) of such rate (the
"Minimum Renewal Term Base Rental Rate"), regardless of any
determination of Prevailing Market rate made by the appraisers
or arbitrator, as described above.
F. If Tenant is entitled to and properly exercises its Renewal Option,
Landlord shall prepare an amendment (the "Renewal Amendment") to
reflect changes in the Base Rental, Lease Term, Termination Date and
other appropriate terms. The Renewal Amendment shall be sent to
Tenant within a reasonable time after receipt of the Binding Notice
and Tenant shall execute and return the Renewal Amendment to
Landlord within fifteen (15) days after Tenant's receipt of same,
but an otherwise valid exercise of the Renewal Option shall, at
Landlord's option, be fully effective whether or not the Renewal
Amendment is executed.
G. For purposes hereof, "Prevailing Market" shall mean the arms length
fair market annual rental rate per rentable square foot under
renewal leases and amendments entered into on or about the date on
which the Prevailing Market is being determined hereunder for space
comparable to the Premises in the Building and office buildings
comparable to the Building in the Buckhead area of Atlanta, Georgia.
The determination of Prevailing Market shall take into account any
material economic differences between the terms of this Lease and
any comparison lease, such as rent abatements, construction costs
and other
52
concessions and the manner, if any, in which the landlord under any
such lease is reimbursed for operating expenses and taxes. The
determination of Prevailing Market shall also take into
consideration any reasonably anticipated changes in the Prevailing
Market rate from the time such Prevailing Market rate is being
determined and the time such Prevailing Market rate will become
effective under this Lease.
IV. RIGHT OF FIRST REFUSAL.
▇. ▇▇▇▇▇ OF OPTION. Tenant shall have the right of first refusal with
respect to the approximately 8,739 rentable square feet of space on
the sixteenth (16th) floor of the Building shown on the demising
plan attached hereto as EXHIBIT A-1 (the "Refusal Space"), which
right of first refusal shall be exercised as follows: when Landlord
has a prospective tenant ("Prospect") interested in leasing the
Refusal Space, Landlord shall advise Tenant (the "Advice") of the
terms under which Landlord is prepared to lease the Refusal Space to
such Prospect, as modified by Landlord for Tenant to reflect a lease
term for the Refusal Space which terminates coterminous with the
initial Premises (the "Advice"), and Tenant may lease the Refusal
Space, under such terms in the Advice, by providing Landlord with
written notice of exercise ("Notice of Exercise") within five (5)
days after the date of the Advice, except that Tenant shall have no
such Right of First Refusal and Landlord need not provide Tenant
with an Advice if:
1. Tenant is in default under the Lease beyond any applicable cure
period at the time Landlord would otherwise deliver the Advice;
or
2. more than twenty percent (20%) of the Premises is sublet, other
than to a Permitted Transferee (as defined in Section XIII.E of
the Lease), at the time Landlord would otherwise deliver the
Advice; or
3. the Lease has been assigned, other than to a Permitted
Transferee (as defined in Section XIII.E of the Lease), prior
to the date Landlord would otherwise deliver the Advice; or
4. the Refusal Space is not intended for the exclusive use of
Tenant during the Lease Term; or
5. the Commencement Date has occurred and the Tenant is not
occupying the Premises on the date Landlord would otherwise
deliver the Advice.
B. TERMS FOR REFUSAL SPACE.
1. The term for the Refusal Space shall commence upon the
commencement date stated in the Advice and thereupon such
Refusal Space shall be considered a part of the Premises,
provided that all of the terms stated in the Advice (including,
without limitation, the expiration date set forth in the
Advice) shall govern Tenant's leasing of the Refusal Space and
only to the extent that they do not conflict with the Advice,
the terms and conditions of this Lease shall apply to the
Refusal Space.
2. The Refusal Space (including improvements and personalty, if
any) shall be accepted by Tenant in its condition and as-built
configuration existing on the earlier of the date Tenant takes
possession of the Refusal Space or the date the term for such
Refusal Space commences, unless the Advice specifies work to be
performed by Landlord in the Refusal Space, in which case
Landlord shall perform such work in the Refusal Space.
C. TERMINATION OF RIGHT OF FIRST REFUSAL. The rights of Tenant
hereunder with respect to the Refusal Space shall terminate on the
earlier to occur of (i) September 30, 2005; (ii) Tenant's failure to
exercise its Right of First Refusal within the five (5) day period
provided in paragraph A above; and (iii) the date Landlord would
have provided Tenant an Advice if Tenant had not been in violation
of one or more of the conditions set forth in Paragraph A above.
Notwithstanding item (ii) above, if (i) Tenant was entitled to
exercise its Right of First Refusal, but failed to provide Landlord
with a Notice of Exercise within the five (5) day period provided in
paragraph A above, and (ii) Landlord does not enter into a lease for
the Refusal Space within a period of six (6) months
53
following the date of the Advice, Tenant shall once again have a
Right of First Refusal with respect to the Refusal Space.
D. REFUSAL SPACE AMENDMENT
1. If Tenant exercises its Right of First Refusal, Landlord shall
prepare an amendment (the "Refusal Space Amendment") adding the
Refusal Space to the Premises on the terms set forth in the
Advice and reflecting the changes in the Base Rental, Rentable
Area of the Premises, Tenant's Pro Rata Share and other
appropriate terms.
2. A copy of the Refusal Space Amendment shall be (i) sent to
Tenant within a reasonable time after Landlord's receipt of the
Notice of Exercise, and (ii) executed by Tenant and returned to
Landlord within ten (10) Business Days thereafter, but an
otherwise valid exercise of the Right of First Refusal shall,
at Landlord's option, be fully effective whether or not the
Refusal Space Amendment is executed.
E. Notwithstanding anything herein to the contrary, Tenant's Right of
First Refusal is subject and subordinate to (i) the renewal or
extension rights of any tenant leasing all or any portion of the
Refusal Space, and (ii) the expansion rights (whether such rights
are designated as a right or first offer, right of first refusal,
expansion option or otherwise) of HTG Corporation (or any successor
thereof) existing on the date hereof.
V. SATELLITE DISH.
A. During the initial Lease Term, Tenant shall have the right, by
providing written notice to Landlord (the "Antenna Notice"), to
lease space on the roof of the Building or other appropriate space
on or about the Building, as reasonably determined by Landlord, for
the purpose of installing (in accordance with Section X.B of the
Lease), operating and maintaining an antenna, satellite dish or
other communication device approved by Landlord (the
"Dish/Antenna"). If Tenant does not provide Landlord with the
Antenna Notice and install the permitted Dish/Antenna equipment in
the Roof Space on or before July 1, 2000 (the "Required Antenna
Notice Date"), then Tenant's rights under this Section V shall be
subject to the availability of appropriate space on the roof of the
Building or on or about the Building, as reasonably determined by
Landlord. If Tenant does not provide Landlord with the Antenna
Notice and install the permitted Dish/Antenna equipment in the Roof
Space on or before July 1, 2001, then Tenant's rights under this
Section V shall be null and void, unless otherwise agreed by
Landlord in writing. In consideration for Tenant's right to install,
operate and maintain the Dish/Antenna as described herein, Tenant
shall pay Landlord monthly payments of $300.00 per month, subject to
5% escalations each annual anniversary of the Required Antenna
Notice Date (the "Dish/Antenna Payments"). The Dish/Antenna Payments
shall constitute Additional Base Rental under the terms of the Lease
and Tenant shall be required to make these payments in strict
compliance with the terms of Section IV of the Lease. The exact
location and size of the space on the roof or on or about the
Building to be utilized by Tenant shall be designated by Landlord
(the "Roof Space"). Landlord reserves the right to relocate the Roof
Space as reasonably necessary during the Lease Term. Landlord's
designation shall take into account Tenant's use of the
Dish/Antenna. Notwithstanding the foregoing, Tenant's right to
install the Dish/Antenna shall be subject to the approval rights of
Landlord and Landlord's architect and/or engineer with respect to
the plans and specifications of the Dish/Antenna, the manner in
which the Dish/Antenna is attached to the roof of the Building and
the manner in which any cables are run to and from the Dish/Antenna.
The precise specifications and a general description of the
Dish/Antenna along with all documents Landlord reasonably requires
to review the installation of the Dish/Antenna (the "Plans and
Specifications") shall be submitted to Landlord for Landlord's
written approval no later than twenty (20) days before Tenant
commences to install the Dish/Antenna. Tenant shall be solely
responsible for obtaining all necessary governmental and regulatory
approvals and for the cost of installing, operating, maintaining and
removing the Dish/Antenna. Tenant shall notify Landlord upon
completion of the installation of the Dish/Antenna. If Landlord
determines that the Dish/Antenna equipment does not comply with the
approved Plans and
54
Specifications, that the Building has been damaged during
installation of the Dish/Antenna or that the installation was
defective, Landlord shall notify Tenant of any noncompliance or
detected problems and Tenant promptly shall cure the defects. If the
Tenant fails to promptly cure the defects, Tenant shall pay to
Landlord upon demand the cost, as reasonably determined by Landlord,
of correcting any defects and repairing any damage to the Building
caused by such installation. If at any time Landlord, in its sole
discretion, deems it necessary, Tenant shall provide and install, at
Tenant's sole cost and expense, appropriate aesthetic screening,
reasonably satisfactory to Landlord, for the Dish/Antenna (the
"Aesthetic Screening").
B. Landlord agrees that Tenant, upon reasonable prior written notice to
Landlord, shall have access to the roof of the Building and the Roof
Space for the purpose of installing, maintaining, repairing and
removing the Dish/Antenna, the appurtenances and the Aesthetic
Screening, if any, all of which shall be performed by Tenant or
Tenant's authorized representative or contractors, which shall be
approved by Landlord, at Tenant's sole cost and risk. It is agreed,
however, that only authorized engineers, employees or properly
authorized contractors of Tenant, FCC inspectors, or persons under
their direct supervision will be permitted to have access to the
roof of the Building and the Roof Space. Tenant further agrees to
exercise firm control over the people requiring access to the roof
of the Building and the Roof Space in order to keep to a minimum the
number of people having access to the roof of the Building and the
Roof Space and the frequency of their visits.
C. It is further understood and agreed that the installation,
maintenance, operation and removal of the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, is not permitted
to damage the Building or the roof thereof, or interfere with the
use of the Building and roof by Landlord. Tenant agrees to be
responsible for any damage caused to the roof or any other part of
the Building, which may be caused by Tenant or any of its agents or
representatives.
D. Tenant agrees to install only equipment of types and frequencies
which will not cause unreasonable interference to Landlord or
existing tenants of the Building. In the event Tenant's equipment
causes such interference, Tenant will change the frequency on which
it transmits and/or receives and take any other steps necessary to
eliminate the interference. If said interference cannot be
eliminated within a reasonable period of time, in the judgment of
Landlord, then Tenant agrees to remove the Dish/Antenna from the
Roof Space.
E. Tenant shall, at its sole cost and expense, and at its sole risk,
install, operate and maintain the Dish/Antenna in a good and
workmanlike manner, and in compliance with all Building, electric,
communication, and safety codes, ordinances, standards, regulations
and requirements, now in effect or hereafter promulgated, of the
Federal Government, including, without limitation, the Federal
Communications Commission (the "FCC"), the Federal Aviation
Administration ("FAA") or any successor agency of either the FCC or
FAA having jurisdiction over radio or telecommunications, and of the
state, city and county in which the Building is located. Under this
Lease, the Landlord and its agents assume no responsibility for the
licensing, operation and/or maintenance of Tenant's equipment.
Tenant has the responsibility of carrying out the terms of its FCC
license in all respects. The Dish/Antenna shall be connected to
Landlord's power supply in strict compliance with all applicable
Building, electrical, fire and safety codes. Neither Landlord nor
its agents shall be liable to Tenant for any stoppages or shortages
of electrical power furnished to the Dish/Antenna or the Roof Space
because of any act, omission or requirement of the public utility
serving the Building, or the act or omission of any other tenant,
invitee or licensee or their respective agents, employees or
contractors, or for any other cause beyond the reasonable control of
Landlord, and Tenant shall not be entitled to any rental abatement
for any such stoppage or shortage of electrical power. Neither
Landlord nor its agents shall have any responsibility or liability
for the conduct or safety of any of Tenant's representatives,
repair, maintenance and engineering personnel while in or on any
part of the Building or the Roof Space.
F. The Dish/Antenna, the appurtenances and the Aesthetic Screening, if
any, shall remain the personal property of Tenant, and shall be
removed by Tenant at its
55
own expense at the expiration or earlier termination of this Lease
or Tenant's right to possession hereunder. Tenant shall repair any
damage caused by such removal, including the patching of any holes
to match, as closely as possible, the color surrounding the area
where the equipment and appurtenances were attached. Tenant agrees
to maintain all of the Tenant's equipment placed on or about the
roof or in any other part of the Building in proper operating
condition and maintain same in satisfactory condition as to
appearance and safety in Landlord's sole discretion. Such
maintenance and operation shall be performed in a manner to avoid
any interference with any other tenants or Landlord. Tenant agrees
that at all times during the Lease Term, it will keep the roof of
the Building and the Roof Space free of all trash or waste materials
produced by Tenant or Tenant's agents, employees or contractors.
G. In light of the specialized nature of the Dish/Antenna, Tenant shall
be permitted to utilize the services of its choice for installation,
operation, removal and repair of the Dish/Antenna, the appurtenances
and the Aesthetic Screening, if any, subject to the reasonable
approval of Landlord. Notwithstanding the foregoing, Tenant must
provide Landlord with prior written notice of any such installation,
removal or repair and coordinate such work with Landlord in order to
avoid voiding or otherwise adversely affecting any warranties
granted to Landlord with respect to the roof. If necessary, Tenant,
at its sole cost and expense, shall retain any contractor having a
then existing warranty in effect on the roof to perform such work
(to the extent that it involves the roof), or, at Tenant's option,
to perform such work in conjunction with Tenant's contractor. In the
event the Landlord contemplates roof repairs that could affect
Tenant's Dish/Antenna, or which may result in an interruption of the
Tenant's telecommunication service, Landlord shall formally notify
Tenant at least thirty (30) days in advance (except in cases of an
emergency) prior to the commencement of such contemplated work in
order to allow Tenant to make other arrangements for such service.
H. Tenant shall not allow any provider of telecommunication, video,
data or related services ("Communication Services") to locate any
equipment on the roof of the Building or in the Roof Space for any
purpose whatsoever, nor may Tenant use the Roof Space and/or
Dish/Antenna to provide Communication Services to an unaffiliated
tenant, occupant or licensee of another building, or to facilitate
the provision of Communication Services on behalf of another
Communication Services provider to an unaffiliated tenant, occupant
or licensee of the Building or any other building.
I. Tenant acknowledges that Landlord may at some time establish a
standard license agreement (the "License Agreement") with respect to
the use of roof space by tenants of the Building. Tenant, upon
request of Landlord, shall enter into such License Agreement with
Landlord provided that such agreement does not materially alter the
rights of Tenant hereunder with respect to the Roof Space.
J. Tenant specifically acknowledges and agrees that the terms and
conditions of Article XV of the Lease (Indemnity and Waiver of
Claims) shall apply with full force and effect to the Roof Space and
any other portions of the roof accessed or utilized by Tenant, its
representatives, agents, employees or contractors.
K. If Tenant defaults under any of the terms and conditions of this
Section or the Lease, and Tenant fails to cure said default within
the time allowed by Article XXII of the Lease, Landlord shall be
permitted to exercise all remedies provided under the terms of the
Lease, including removing the Dish/Antenna, the appurtenances and
the Aesthetic Screening, if any, and restoring the Building and the
Roof Space to the condition that existed prior to the installation
of the Dish/Antenna, the appurtenances and the Aesthetic Screening,
if any. If Landlord removes the Dish/Antenna, the appurtenances and
the Aesthetic Screening, if any, as a result of an uncured default,
Tenant shall be liable for all costs and expenses Landlord incurs in
removing the Dish/Antenna, the appurtenances and the Aesthetic
Screening, if any, and repairing any damage to the Building, the
roof of the Building and the Roof Space caused by the installation,
operation or maintenance of the Dish/Antenna, the appurtenances, and
the Aesthetic Screening, if any.
56
VI. STANDARD OF REASONABLENESS. Except as specifically provided otherwise in
this Lease, and except with regard to requests for consent or approval
that require Landlord to make a determination of the aesthetics of
certain signage, alterations or other things that would be visible from
outside the Premises or Building or to assume certain risks, including,
without limitation, the risk that a certain alteration, addition and/or
improvement could adversely affect the mechanical systems or structure of
the Building or require excess removal costs, Landlord and Tenant agree
to act reasonably in granting approval or disapproval of any requests by
the other for consent or approval.
VII. ENVIRONMENTAL MATTERS.
A. Landlord represents, to the best of its knowledge, that the Building
and Premises are free of Hazardous Materials (as defined below) in
amounts, and conditions which pose danger to human beings or are in
violation of applicable environmental laws.
B. Tenant shall not use, generate, manufacture, store or dispose of, on
or about the Premises or Building, or transport to or from the
Premises or Building, any flammable explosives, radioactive
materials, hazardous wastes, toxic substances, or any related
materials or substances, including, without limitation, any
substance defined as or included in the definition of "hazardous
substances" under any applicable federal, state or local law,
regulation or ordinance (collectively, "Hazardous Materials").
C. Notwithstanding the provisions of this Section VII, Tenant and
Landlord shall have the right to use, generate and store on the
Premises and the Building, and transport to and from the Premises
and the Building, those Hazardous Materials which are generally used
in the ordinary course in first class office buildings; provided,
however, that Tenant's and Landlord's use, generation, storage and
transport thereof is in compliance with all applicable federal,
state and local laws, regulations and ordinances.
D. Promptly, upon either Landlord's or Tenant's obtaining actual
knowledge thereof, such party shall immediately notify the other
party in writing of (i) any and all enforcement, cleanup, removal or
other governmental or regulatory actions instituted, completed or
threatened with respect to Hazardous Materials in or at the Building
pursuant to any applicable federal, state or local law, ordinance or
regulation, and (ii) all claims made or threatened by any third
party against Landlord, Tenant, or the Premises relating to any
damage, loss or injury, whether to person or property, resulting
from the Hazardous Materials.
VIII. TELECOMMUNICATIONS PROVIDER.
A. Tenant, at its sole cost and expense, shall have the right to
contract with an alternative telecommunications provider
("Alternative Provider") for the provision to the Premises of local
telephone service or other telecommunication service and permit such
Alternative Provider to install telephone, data or other information
cabling or other telecommunications equipment in the Premises for
such purpose. Tenant shall be permitted to use its pro rata share of
the Building's riser system for the purpose of installing
appropriate cabling for such use. The point of entry (and method and
manner of same) into the Building by such Alternative Provider shall
be subject to Landlord's reasonable approval.
B. The rights of Tenant provided herein are subject to (i) Landlord's
approval of plans and specifications regarding any
telecommunications equipment or cabling to be installed in the
Building; (ii) Landlord's approval of the manner and method of any
such installation; (iii) Landlord's approval of the Alternative
Provider; and (iv) the Alternative Provider's execution and delivery
of Landlord's standard telecommunications/communications license
agreement. The approval of Landlord required in connection with the
foregoing matters shall not be unreasonably withheld. Landlord shall
not be entitled to receive any compensation from Tenant in
connection with allowing the access described herein, provided such
access is used exclusively to provide service to Tenant in the
Building.
C. Tenant and/or its Alternative Provider shall be permitted access to
the Building's riser system for the initial installation of the
telecommunications cabling and
57
other equipment and, in order to install, maintain, operate and
remove the telecommunications cabling or other equipment, Tenant and
the Alternative Provider shall be permitted access to the
telecommunications closet(s) on the floors on which the Premises are
located. Upon expiration or earlier termination of this Lease or
Tenant's right to possession of the Premises, Tenant, at Tenant's
cost, if requested by Landlord, shall remove all cabling and conduit
from the riser system or other portions of the Building outside of
the Premises and other equipment installed by or on behalf of Tenant
in connection with the service to be provided in accordance with
this Section XIII.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of
the day and year first above written.
LANDLORD:
EOP-BUCKHEAD, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
TENANT:
VIEWLOCITY, INC., A DELAWARE CORPORATION
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
58
EXHIBIT F
FORM OF LETTER OF CREDIT
This Exhibit is attached to and made a part of the Lease dated
_____________, 1999, by and between EOP-BUCKHEAD, L.L.C. ("Landlord") and
VIEWLOCITY, INC. ("Tenant") for space in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
_______________________________
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. ______________________
Issuance Date:_____________
Expiration Date:____________
Applicant:__________________
BENEFICIARY
EOP-Buckhead, L.L.C.
c/o Equity Office Properties Trust
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Building Manager
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor
for the account of the above referenced Applicant in the amount of One Million
Two Hundred Twelve Thousand Four Hundred Sixty Eight and 06/100 U.S. Dollars
($1,212,468.06) available for payment at sight by your draft drawn on us when
accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ______________________ U.S. Dollars
($____________) under your Irrevocable Standby Letter of Credit No.
____________________ represents funds due and owing to us as a result of
the Applicant's failure to comply with one or more of the terms of that
certain lease by and between EOP-Buckhead, L.L.C., as landlord, and
Viewlocity, Inc., as tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it will
be considered automatically renewed for a one year period upon the expiration
date set forth above and upon each anniversary of such date, unless at least
sixty (60) days prior to such expiration date or applicable anniversary thereof,
we notify you in writing by certified mail, return receipt requested, that we
elect not to so renew this Irrevocable Standby Letter of Credit. A copy of any
such notice shall also be sent to: Equity Office Properties Trust, ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Treasurer. In
addition, provided that you have not provided us with written notice of
Applicant's default under the above referenced lease prior to the effective date
of any reduction, the amount of this Irrevocable Standby Letter of Credit shall
automatically reduce in accordance with the following schedule:
EFFECTIVE DATE OF REDUCTION NEW REDUCED AMOUNT OF LETTER OF CREDIT
OCTOBER 15, 2002 $ 969,974.45
OCTOBER 15, 2003 $ 727,480.84
OCTOBER 15, 2004 $ 484,987.23
OCTOBER 15, 2005 $ 242,493.62
OCTOBER 15, 2006 $ 0.00
In addition to the foregoing, we understand and agree that you shall be entitled
to draw upon this Irrevocable Standby Letter of Credit in accordance with 1. and
2. above in the event that we elect not to renew this Irrevocable Standby Letter
of Credit and, in addition, you provide us with a dated statement proportedly
signed by one of Beneficiary's officers stating that the Applicant
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has failed to provide you with an acceptable substitute irrevocable standby
letter of credit in accordance with the terms of the above referenced lease. We
further acknowledge and agree that: (a) upon receipt of the documentation
required herein, we will honor your draws against this Irrevocable Standby
Letter of Credit without inquiry into the accuracy of Beneficiary's signed
statement and regardless of whether Applicant disputes the content of such
statement; (b) this Irrevocable Standby Letter of Credit shall permit partial
draws and, in the event you elect to draw upon less than the full stated amount
hereof, the stated amount of this Irrevocable Standby Letter of Credit shall be
automatically reduced by the amount of such partial draw; and (c) you shall be
entitled to assign your interest in this Irrevocable Standby Letter of Credit
from time to time without our approval and without charge. In the event of an
assignment, we reserve the right to require reasonable evidence of such
assignment as a condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform Customs
and Practice for Documentary Credits (1993 revision) ICC Publication No. 500.
We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter of
Credit must be addressed to our office located at ______________________________
to the attention of _________________________.
Very truly yours,
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[name]
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[title}
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EXHIBIT G
CRITICAL DATE SCHEDULE
CRITICAL DATE ACTUAL DATE
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1. Equity releases Architect to commence preparation
of Construction Drawings Done
2. Customer supplies Architect final, approved finish
selections 8/13/99
3. Architect completes Construction Drawings 8/27/99
4. Equity and Customer approve Construction
Drawings. Construction Release forwarded to TI
and PM 8/30/99
5. Equity substantially completes construction 10/14/99
6. Premises ready for Customer to begin furniture
installation 10/15/99
7. Move-in date 10/15/99
After commencement of construction drawings (step 1 above), Customer (tenant)
driven changes to the approved space plans, or to the construction drawings in
process, will be handled as follows:
a. Tenant will be responsible for the costs of additional drawings
necessary to evaluate pricing alternates.
b. Tenant will be responsible for any additional costs associated with
revising construction documents to reflect changes.
c. Tenant will be responsible for any delay in the above schedule.
d. Tenant will be billed for the cost of the changes plus an additional
17% project management fee.
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