EXHIBIT 10.2
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ AND ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
LEASE AGREEMENT
BY AND BETWEEN
SPRING STREET, L.L.C., AS LANDLORD
AND
NAVIANT, INC., AS TENANT
October 28, 1999
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into as of the 28th day
of October, 1999, by and between SPRING STREET, L.L.C., a Georgia limited
liability company ("Landlord"), whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Fifth
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▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Naviant, Inc., a Delaware corporation
("Tenant") whose address is ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
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▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Subject to all of the terms, provisions, covenants and
conditions of this Lease, and in consideration of the mutual covenants,
obligations and agreements contained in this Lease, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Landlord and Tenant agree as follows:
ARTICLE I
BASIC LEASE PROVISIONS
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Landlord, for and in consideration of the rents and all other charges and
payments hereunder and of the covenants, agreements, terms, provisions and
conditions to be kept and performed hereunder by Tenant, demises and leases to
Tenant, and Tenant hereby hires and takes from Landlord, the premises described
below, subject to all matters hereinafter set forth and upon and subject to the
covenants, agreements, terms, provisions and conditions of this Lease for the
term hereinafter stated. For purposes of this Lease, the following terms shall
have the meanings ascribed to them below:
Base Year shall mean calendar year 2000.
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Building shall mean the approximately 83,453 square foot structure located at
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▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and situated upon the Land
(hereinafter defined) constituting the Project commonly known as Midtown
Heights, as the same currently exists or as it may from time to time hereafter
be expanded or modified.
Commencement Date shall mean the date that is the earlier of: (i) fourteen (14)
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days following Tenant's written notice to Landlord of "Substantial Completion"
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(as defined in Exhibit "E" herein) of Tenant's Work; or (ii) January 22, 2000
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(as such date may be extended by an event of Force Majeure (as defined in
Section 7.2 herein)).
Expiration Date shall mean the last day of the sixtieth (60th) complete calendar
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month following the Commencement Date.
Land shall mean that certain tract of land situated in ▇▇▇▇▇▇ County, Georgia,
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and more particularly described on "Exhibit A" attached hereto and hereby made a
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part hereof, as "Exhibit A" may be revised from time to time to include adjacent
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or additional parcels of land.
Lease Year shall mean each twelve (12) consecutive complete calendar month
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period during the Term commencing with the Commencement Date.
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Market Rate shall mean the generally prevailing parking rate charged by property
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owners and/or parking facility operators within the Midtown Atlanta area.
Separate Market Rates shall apply for spaces in surface parking lots and for
spaces in parking structures.
Project shall mean the Building, the adjacent building located at 1330 Spring
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Street (the "Adjacent Building"), the Land, the parking garage and/or parking
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areas serving the Building, if any, all other improvements situated on the Land
or directly benefiting the Project, as more particularly reflected on Exhibit
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"A-1" attached hereto and hereby made a part hereof, as Exhibit "A-1" may be
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revised from time to time to include any additional buildings, facilities or
other improvements directly benefiting the Project that may be constructed in
subsequent years.
Term shall mean sixty (60) complete calendar months following the Commencement
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Date. In addition, provided that Tenant is not then in default hereunder and,
provided further, that Tenant has not entered into a Transfer (other than a
Permitted Transfer), whether or not consented to by Landlord, Tenant shall have
the right, at the expiration of the initial Term hereof, to extend the Term of
this Lease for two (2) successive periods of five (5) Lease Years each, such
extension(s) to be on the same terms, covenants and conditions as are herein
contained, except that the Base Rent for the first Lease Year of each extended
term s shall be an amount equal to the then current Base Rent increased by an
amount equal to two and one-half percent (2.5%) of the Base Rent for the last
Lease Year of the then current Term (the initial Term, and any extensions or
renewal, thereof, being hereinafter referred to as the "Term"). Base Rent for
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the second and all subsequent Lease Years of each extended term shall be
increased, on the first day of the second and each such subsequent Lease Year
during such extended term, by an amount equal to two and one-half percent (2.5%)
of the Base Rent for the immediately preceding Lease Year. Such right to
extend, or further extend, as the case may be, shall be exercised by Tenant
giving written notice to Landlord at least one hundred eighty (180) days, but
not more than three hundred sixty five (365) days prior to the expiration of the
current Term or extended term hereof. At such time, Tenant may only exercise
its extension right with respect to the extended term which commences upon the
expiration of the current initial Term or the extended term, as applicable.
ARTICLE II
Section 2.1 Premises. The Premises demised by this Lease are deemed to be
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23,760 square feet known or to be known as the sixth and seventh floors of the
Building, together with the exclusive right to use a certain portion of the roof
(the "Roof Space") containing not more than 735 square feet (collectively, the
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"Demised Premises") and together with the nonexclusive use of the common areas
of the Project made available by Landlord from time to time to all tenants of
the Project (together with the Demised Premises, collectively, the "Premises").
The Premises are outlined on Exhibit "B" attached hereto and hereby made a part
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hereof. All square footage utilized in this Lease has been or will be as to
future space, made in accordance with "Standard Method for Measuring Floor Area
in Office Buildings", published by the Secretariat, Buildings Owners and
Managers Association International (ANSI/BOMA Z65.1 1996), approved June 7,
1996. Unless otherwise specifically designated, all references to square footage
or square feet in this Lease are to rentable square footage or square feet.
Section 2.2 Term. The Term of this Lease shall begin on the Commencement
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Date and shall continue in full force and effect through and including the
Expiration Date of this Lease
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unless extended or sooner terminated in accordance with the provisions of this
Lease. After the occurrence of the Commencement Date, Tenant and Landlord shall
execute a certificate in the form attached as Exhibit "D" stipulating and
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agreeing to the Commencement Date and the Expiration Date, if applicable. If the
Commencement Date should be changed for any reason, including a change pursuant
to the terms of Exhibit "E" hereto, except for a change due to the gross
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negligence or willful misconduct of Landlord, its agents, contractors or
employees, Landlord shall not be liable or responsible for any claims, damages
or liabilities in connection therewith or by reason thereof. If Landlord is
unable to deliver possession of the Premises to Tenant on the Commencement Date
for any reason other than pursuant to the terms of Exhibit "E" hereto,
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including, without limitation, then the term Commencement Date shall mean such
subsequent date upon which Landlord is able to deliver possession of the
Premises to Tenant, and such failure to deliver possession of the Premises on
the earlier date shall not constitute a default by Landlord hereunder or render
Landlord liable for any loss or damage that may be incurred as a result of such
failure, except if such delay is due to the gross negligence or willful
misconduct of Landlord, its agents, contractors or employees.
Section 2.3 Use. The Premises are to be used only for general office
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purposes. In addition, the Premises may be occupied by no more than five (5)
persons per one thousand (1,000) square feet of office space (with any
fractional product being rounded downward). No act shall be done in or about the
Premises that is unlawful or that will increase the existing rate of insurance
on the Building. In the event of a breach of this covenant, Tenant shall
immediately cease the performance of such unlawful act or such act that is
increasing or has increased the existing rate of insurance and shall pay to
Landlord any and all increases in insurance premiums resulting from such breach.
Tenant shall not commit or allow to be committed any waste upon the Premises, or
any public or private nuisance or other act or thing which disturbs the quiet
enjoyment of any other tenant in the Building. If any of Tenant's office
machines or equipment causes interruption with any other Building tenant's
business, then Tenant shall provide adequate insulation, or take such other
action as may be necessary to eliminate the noise or disturbance at its sole
cost and expense. Tenant shall not, without Landlord's prior consent, such
consent not to be unreasonably withheld, conditioned or delayed, install any
equipment, machine, device, tank or vessel which is subject to any federal,
state or local permitting requirement. Tenant, at its expense, shall comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements governing the installation, operation and removal of any such
equipment, machine, device, tank or vessel. Tenant, at its expense, shall comply
with all laws, statutes, ordinances, governmental rules, regulations or
requirements, and the provisions of any recorded documents now existing or
hereafter in effect relating to its use, operation or occupancy of the Demised
Premises and shall observe such reasonable rules and regulations as may be
adopted and made available to Tenant by Landlord from time to time for the
safety, care and cleanliness of the Premises or the Building and for the
preservation of good order therein. The current rules and regulations for the
Building are attached hereto as "Exhibit F". Without limiting the foregoing,
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Tenant agrees to be wholly responsible at Tenant's sole cost and expense for any
accommodations or alterations which need to be made to the Demised Premises to
comply with the provisions of the Americans With Disabilities Act of 1990, as
amended.
Section 2.4 Right Of First Offer. Beginning on the Commencement Date and
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continuing through the Term of this Lease as the same may be extended, if there
should become available for occupancy any space on the fifth floor of the
Building (the "Offer Space"), then
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prior to the time Landlord makes or responds to an offer from a potential
occupant (the "Offeree"), Landlord shall so notify Tenant in writing of such
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availability, and shall provide in such notice the base rent (which base rent
shall be the proposed base rent for the Offer Space to the Offeree), the
operating expenses, the term, and any other terms and conditions on which
Landlord is willing to lease the Offer Space to the Offeree (the "Offer").
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Notwithstanding the terms of the Offer, as applied to Tenant, the term of the
Offer shall be equal to the Term of this Lease, without including any options
which have not been exercised by the Tenant by the date of the Offer is
accepted. Notwithstanding the terms of the Offer, if any tenant improvement
allowance is offered to the Offeree, such tenant improvement allowance shall be
offered to Tenant; provided, however, if the term of the Offer is greater than
the Term of this Lease, then the tenant improvement allowance offered to Tenant
shall be a number equal to the tenant improvement allowance in the Offer
multiplied by a fraction, the numerator of which is the number of Lease Years
remaining on the Term of this Lease and the denominator of which is the number
of years in the term of the Offer [Example: tenant improvement allowance in the
Offer is $21.00, number of Lease Years remaining in the Term is 3, term of Offer
is 7 years: 21* (3/7) = 9]. Landlord shall notify Tenant of the Offer by
providing to Tenant a proposed amendment to this Lease which shall incorporate
all terms of the Offer (the "Amendment"). Tenant shall have ten (10) business
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days within which to accept the Offer as embodied in the Amendment in its
entirety by the execution and return to Landlord of the Amendment. If Tenant
does not accept any Offer in accordance with its terms by executing and
returning the Amendment to Landlord within said ten (10) business day period,
Landlord shall be free to rent such Offer Space on such terms and conditions as
it deems appropriate. Tenant shall not be permitted to accept an Offer in the
event that less than one (1) year remains on the Term of this Lease, as the same
may be extended, and Tenant has not exercised (or does not exercise as allowed)
its option to extend the Term of this Lease. This right of first offer is
personal to Tenant, and is not assignable or transferable to any assignee,
sublessee or successor in interest or title of Tenant, unless such assignee is a
successor in interest to Tenant pursuant to a Permitted Transfer.
Section 2.5 Right Of First Refusal. Beginning On The Commencement Date And
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Continuing Through The Term Of this Lease as the same may be extended, if there
should become available for occupancy any space on the fifth floor of the
Building which Landlord has not previously leased to another party (the "First
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Generation Offer Space"), then prior to the time Landlord makes or responds to
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an offer (the "First Generation Offer") from a potential occupant, Landlord
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shall notify Tenant in writing of the existence (but not the terms) of the First
Generation Offer for the First Generation Offer Space by providing to Tenant a
proposed amendment to this Lease which shall incorporate the First Generation
Offer Space into the definition of Demised Premises and shall revise Section
3.1(a) to incorporate the additional rentable square feet of the Demised
Premises and accordingly recalculate the Base Rent calculations (the "First
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Generation Amendment"). If any tenant improvement allowance is included in the
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First Generation Offer, such tenant improvement allowance shall be offered to
Tenant; provided, however, if the term of the First Generation Offer is greater
than the Term of this Lease, then the tenant improvement allowance offered to
Tenant shall be a number equal to the tenant improvement allowance in the First
Generation Offer multiplied by a fraction, the numerator of which is the number
of Lease Years remaining on the Term of this Lease and the denominator of which
is the number of years in the term of the First Generation Offer [Example:
tenant improvement allowance in the First Generation Offer is $21.00, number of
Lease Years
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remaining in the Term is 3, term of First Generation Offer is 7 years: 21* (3/7)
= 9]. Tenant shall have ten (10) business days within which to accept the First
Generation Offer as embodied in the First Generation Amendment in its entirety
by the execution and return to Landlord of the First Generation Amendment. If
Tenant does not accept the First Generation Offer in accordance with its terms
by executing and returning the Amendment to Landlord within said ten (10)
business day period, Landlord shall be free to rent such First Generation Offer
Space on such terms and conditions as it deems appropriate. Tenant shall not be
permitted to accept an First Generation Offer in the event that less than one
(1) year remains on the Term of this Lease, as the same may be extended, and
Tenant has not exercised (or does not exercise as allowed) its option to extend
the Term of this Lease. This right of first refusal is personal to Tenant, and
is not assignable or transferable to any assignee, sublessee or successor in
interest or title of Tenant, unless such assignee is a successor in interest to
Tenant pursuant to a Permitted Transfer.
ARTICLE III
Section 3.1 Rental Payment
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(a) Base Rent. Commencing on the Commencement Date and continuing
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thereafter throughout the Term, Tenant shall pay the Base Rent described in this
paragraph, which is due and payable each Lease Year during the Term hereof in
twelve (12) equal installments on the first (1st) day of each calendar month
during the Term, and Tenant shall make such installments to Landlord at
Landlord's address specified in this Lease (or such other address as may be
designated by Landlord from time to time) monthly in advance. Base Rent during
the Term shall be as follows:
Base Rent Per Base Rent
Lease Year Rentable Square Foot Annually Base Rent Monthly
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1 $18.50 $439,560.00 $36,630.00
2 $18.96 $450,489.60 $37,540.80
3 $19.43 $461,656.80 $38,471.40
4 $19.92 $473,299.20 $39,441.60
5 $20.42 $485,179.20 $40,431.60
Landlord and Tenant agree that, at Tenant's election based upon the Plans (as
defined in Exhibit "E"), the Allowance (as defined in Exhibit "E") shall be
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based upon an amount no less than Twenty-one Dollars ($21.00) per square foot
and no greater than Twenty-eight Dollars (28.00) per square foot. If Tenant's
Work costs more than Twenty-eight Dollars (28.00) per square foot, then such
additional work shall be at Tenant's sole cost and expense. In the event that
the Allowance is based upon an amount greater than Twenty-one dollars ($21.00),
then the Base Rent shall be increased by an amount sufficient to amortize
(straight line basis) the amount of the Allowance greater than Twenty-one
dollars ($21.00) over the initial five (5) year Term of this Lease at an
interest rate of ten percent (10.0 %) per anum.
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(b) Rent Escalation. The Base Rent payable for the second and each
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subsequent Lease Year shall be increased, on the first day of the second and
each such subsequent Lease Year, by an amount equal to two and one-half percent
(2.5%) of the Base Rent for the immediately preceding Lease Year, as reflected
in the "Base Rent per Rentable Square Foot" column in the table described above
in Section 3.1(a).
(c) Partial Month. If the Commencement Date is other than the first (1st)
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day of a calendar month or if this Lease expires or terminates on a day other
than the last day of a calendar month, then the installments of Base Rent for
such month or months shall be prorated based upon multiplying the applicable
Base Rent by a fraction, the numerator of which shall be the number of days of
the Term occurring during said commencement or termination month, as the case
may be, and the denominator of which shall be the number of days in such month.
(d) Payment: Late Charge; Past Due Rate. The Base Rent, the Additional
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Rent (hereinafter defined), any Prepaid Rent and any and all other payments
which Tenant is obligated to make to Landlord under this Lease shall constitute
and are sometimes hereinafter collectively referred to as "Rent". Except as may
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otherwise be provided in this Lease, Tenant shall pay all Rent and other sums of
money as shall become due from and payable by Tenant to Landlord in lawful money
of the United States of America at the times and in the manner provided in this
Lease, without demand, deduction, abatement, setoff, counterclaim or prior
notice. Tenant hereby acknowledges that late payment to Landlord of Rent or
other sums due hereunder will cause Landlord to incur costs not contemplated by
this Lease, the exact amount of which will be extremely difficult to ascertain.
If any Rent or other sum due from Tenant is not received on or before its due
date, then Tenant shall pay to Landlord immediately upon Landlord's demand
therefor a late charge in an amount equal to five percent (5%) of such overdue
amount, plus any reasonable and actual attorneys' fees and costs incurred by
Landlord by reason of Tenant's failure to pay Rent and other charges when due
hereunder. Additionally, all Rent under this Lease shall bear interest from the
date due until paid at the lesser of twelve percent (12%) or the maximum
nonusurious rate of interest then permitted by the applicable laws of the state
in which the Project is located or the United States of America, whichever shall
permit the higher nonusurious rate, such interest being in addition to and
cumulative of any other rights and remedies which Landlord may have with regard
to the failure of Tenant to make any such payments under this Lease.
Notwithstanding the foregoing, Landlord shall not declare Tenant in default and
shall not charge Tenant a late charge with respect to the first late payment of
Rent to be paid by Tenant under this Lease during any Lease Year; provided,
however, Tenant shall make such payment of Rent no later than five (5) calendar
days after Tenant receives written notice from Landlord that such sum was due.
Section 3.2 Additional Rent.
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(a) Definitions:
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(i) "Base Operating Expenses" means Operating Expenses (hereinafter
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defined) for the Base Year.
(ii) "Operating Expenses" means all expenses, costs and disbursements
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of every kind and nature relating to or incurred or paid in connection with the
ownership and
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operation of the Project, computed on an accrual basis in accordance with
generally accepted accounting principles consistently applied, including but not
limited to the following:
(A) wages and salaries of all full and part-time persons engaged in
the operation, maintenance, security or access control of the Project, including
all taxes, insurance and benefits relating thereto;
(B) the cost of all supplies, tools, equipment and materials used in
the operation and maintenance of the Project, including rental fees for the
same, if such items are not purchased and amortized pursuant to this Section 3.2
below;
(C) the cost of all utilities for the Project, including but not
limited to the cost of water and power, heating, lighting, air conditioning and
ventilating (excluding those costs billed to specific tenants) of the Building
and the Project;
(D) the cost of all maintenance and service agreements for the
Project and the equipment therein, including but not limited to alarm service,
security service, access control, landscaping and landscaping replacement,
window cleaning, pest control, elevator maintenance and janitorial service;
(E) the cost of repairs and general maintenance, excluding (y)
repairs and general maintenance paid by proceeds of insurance, by Tenant or by
other third parties, and (z) alterations attributable solely to tenants of the
Building;
(F) amortization (together with reasonable financing charges) of the
cost of capital investment items which are installed for the purpose of reducing
operating expenses, promoting safety, complying with governmental requirements
or maintaining the Building in good and normal operating condition and repair;
(G) the cost of all insurance relating to the Project, including, but
not limited to, the cost of property insurance, casualty, rental loss and
liability insurance applicable to the Project and Landlord's personal property
used in connection therewith and the cost of deductibles paid on claims made by
Landlord;
(H) Landlord's and/or Landlord's managing agent's accounting and
audit costs and attorneys' fees applicable to the Project;
(I) all property management fees for the Project; and
(J) All taxes, assessments and governmental charges, whether or not
directly paid by Landlord, whether federal, state, county or municipal and
whether they are imposed by taxing districts or authorities currently taxing the
Project or by others subsequently created or otherwise, and any other taxes and
assessments, assessed against or attributable to the Project or its operation,
excluding, however, federal and state taxes on income, death taxes, franchise
taxes and any taxes imposed or measured on or by the income of Landlord from the
operation of the Project or imposed in connection with any change of ownership
of the Project together with the reasonable, actual cost (including attorneys,
consultants and appraisers) of any negotiation, contest or appeal pursued by
Landlord in an effort to reduce any such tax,
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assessment or charge, and all of Landlord's administrative costs in relation to
the foregoing ("Real Estate Taxes"); provided, however, that if at any time
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during the Term the current method of taxation or assessment shall be so changed
that the whole or any part of the taxes, assessments, levies, impositions or
charges now levied, assessed or imposed on real estate and the improvements
thereof shall be changed and as a substitute therefor, or in lieu of or in
addition thereto, taxes, assessments, levies, impositions or charges shall be
levied, assessed or imposed wholly or partially as a capital levy or otherwise
on the rents received from the Project or the rents reserved herein or any part
thereof, then such substitute or additional taxes, assessments, levies,
impositions or charges, to the extent so levied, assessed or imposed, shall be
deemed to be included within the Real Estate Taxes to the extent that such
substitute or additional tax would be payable if the Project were the only
property of the Landlord subject to such tax.
(iii) "Adjustment Period" means each calendar year occurring during
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the Term beginning with calendar year 2001, which shall be the first Adjustment
Period.
(iv) "Tenant's Pro Rata Share" means the percentage calculated by
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dividing the rentable area of the Premises (numerator) by the total rentable
area of the Buildings comprising the Project (denominator), and expressing the
fraction as a percentage.
(b) Gross-Up Adjustment. If the Project is less than fully occupied during
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the Base Year or any Adjustment Period, then Operating Expenses for the Base
Year or such Adjustment Period shall be "grossed up" by Landlord to that amount
of Operating Expenses that, using reasonable projections, would normally be
expected to be incurred during the Base Year or Adjustment Period if the Project
were ninety-five percent (95%) occupied during the Base Year or Adjustment
Period.
(c) Payment by Tenant. If the Operating Expenses for any Adjustment Period
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exceed the Base Operating Expenses (any such excess being known collectively as
the "Expense Increase"), then Tenant agrees to pay Landlord as additional rent
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(the "Additional Rent") Tenant's Pro Rata Share of the Expense Increase.
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Notwithstanding the foregoing, in calculating the Expense Increase, certain
Operating Expenses such as those described in Section 3.2(a)(ii)(D)(H) and (I)
shall be limited to an increase no more than five percent (5%) per Adjustment
Period.
(d) Manner of Payment.
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(i) Landlord may give Tenant notice of Landlord's estimate of
amounts payable under this Section 3.2 for each Adjustment Period. By the first
day of each month during the Adjustment Period, Tenant shall pay Landlord one-
twelfth (1/12th) of the estimated amount. If for any reason the estimate is not
given before the Adjustment Period begins, Tenant shall continue to pay on the
basis of the previous year's estimate, if any, until the month after the new
estimate is given.
(ii) Within one hundred twenty (120) days after each Adjustment
Period ends, or as soon thereafter as reasonably practical, Landlord shall give
Tenant a statement (the "Statement") showing the: (A) actual Operating Expenses
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for the Adjustment Period; (B) Base Operating Expenses; (C) the Expense Increase
for the Adjustment Period; (D) the amount of
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Tenant's Pro Rata Share of the Expense Increase; (E) the amount, if any, paid by
Tenant during the Adjustment Period toward the Expense Increase; and (F) the
amount Tenant owes toward the Expense Increase or the amount Landlord owes as a
refund. Delay by Landlord in providing to Tenant any Statement shall not relieve
Tenant from the obligation to pay any Expense Increase upon the rendering of
such Statements.
(iii) If the Statement shows that the actual amount Tenant owes for
the Adjustment Period is less than any estimated Expense Increase paid by Tenant
during the Adjustment Period, Landlord shall return the difference (the
"Overpayment"). If the Statement shows that the actual amount Tenant owes is
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more than any estimated Expense Increase paid by Tenant during the Adjustment
Period, Tenant shall pay the difference (the "Underpayment"). The Overpayment or
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Underpayment shall be paid within thirty (30) days after the Statement is
delivered to Tenant.
(iv) During any Adjustment Period in which this Lease is not in
effect for a complete calendar year, unless it was ended due to Tenant's
Default, Tenant's obligation for Additional Rent for those Adjustment Periods
shall be prorated by multiplying the Additional Rent for the Adjustment Period
by a fraction expressed as a percentage, the numerator of which is the number of
days of the Adjustment Period included in the Term and the denominator of which
is 365.
(e) Audit Right. Tenant shall have the right for up to one hundred twenty
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(120) days after Tenant's receipt of the Statement, to elect to audit Landlord's
calculation of the Operating Expenses for the Lease Year pertaining to the
Statement. If Tenant elects by written notice received by Landlord prior to the
expiration of such one hundred twenty (120) day period to perform such audit,
Tenant shall be permitted, within fifteen (15) business days thereafter, to
inspect certain of Landlord's records reasonably necessary (as determined by
Landlord) to determine the accuracy of the Statement. Such audit shall occur at
reasonable times during regular business hours and shall take place at
Landlord's business office, or at any other location in the Atlanta metropolitan
area reasonably selected by Landlord. The audit shall be performed by an
independent certified public accountant (selected by Tenant with Landlord's
reasonable approval) or by a qualified employee of Tenant. The auditors may not
be compensated on the basis of any discrepancies revealed by their audit.
Landlord shall have the right to be present at all times during such audit. If
it is determined that the Operating Costs for such Lease Year are in error by
more than five percent (5%), then Landlord shall pay to Tenant the cost of such
audit, otherwise, Tenant shall bear all such costs and expenses. If such an
audit is performed by or on behalf of Tenant or another tenant of the Project,
Landlord shall pay any Overpayment to Tenant and Tenant shall pay any
Underpayment to Landlord within thirty (30) days after a copy of such audit is
delivered to Tenant. All information received by such auditor shall be kept
strictly confidential.
Section 3.3 Security Deposit. As security for its full and faithful
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performance of this Lease, Tenant shall pay Landlord a security deposit of
Thirty-five Thousand and No/100 Dollars ($35,000.00) upon execution of this
Lease (the "Security Deposit"). If Tenant defaults with respect to any covenant
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or condition of this Lease, including but not limited to the payment of Rent or
any other payment due under this Lease, Landlord may apply all or any part of
the Security Deposit to the payment of any sum in default or any other sum which
Landlord may be
10
required to or deem necessary to spend or incur by reason of Tenant's default.
Upon Landlord's draw of all or any part of the Security Deposit, Tenant shall
deposit with Landlord the amount so applied to replenish the Security Deposit.
Any draw by Landlord of the Security Deposit shall not be deemed to have cured
Tenant's default by reason of which the application is made, until such time as
the amount of the Security Deposit is fully restored. Within thirty (30) days
following the expiration or sooner termination of this Lease, Landlord will
refund Tenant the Security Deposit less any amounts necessary to cure any
default of Tenant under this Lease.
Section 3.4 Letter Of Credit.
----------------
(a) Lease Obligations. As security for its full and faithful performance
-----------------
of Tenant's monetary obligations under this Lease, Tenant shall deliver to
Landlord concurrently with the execution of this Lease, a clean, irrevocable
letter of credit in favor or Landlord in the principal amount of Two Hundred
Fifty Thousand Dollars and No/l00 ($215,000.00) from a bank or other financial
institution reasonably acceptable to Landlord (the "Letter of Credit"). In the
----------------
event that Tenant is in Monetary Default (as hereinafter defined in Section
8.1), then Landlord shall have the right to draw that portion of the Letter of
Credit necessary for the payment of any such Rent in default or for any other
sum which Landlord may expend or be required to expend by reason of Tenant's
Monetary Default, including, without limitation, any verifiable damages related
to such Monetary Default or deficiency in the reletting of the Premises, whether
such damages or deficiency may accrue before or after reentry by Landlord. It is
expressly understood and agreed that the Letter of Credit is not an advance
rental deposit or a measure of Landlord's damages in case of Tenant's default.
Upon Landlord's draw of all or any part of the Letter of Credit deposited as
security hereunder, Tenant shall take such action with the issuing bank for the
Letter of Credit as necessary to restore the Letter of Credit to its current
amount. Any draw by Landlord under the Letter of Credit shall not be deemed to
have cured Tenant's default by reason of which the application is made, until
such time as the current amount of the Letter of Credit is fully restored. Any
sum of money drawn by Landlord under the Letter of Credit shall be credited
against any sum of money Tenant owes Landlord which is due and payable. Actions
by Landlord against Tenant for breach of this Lease shall in no way be limited
to or restricted by the amount of the Letter of Credit and any draw under the
Letter of Credit shall not waive any other rights or constitute an election of
remedies which Landlord may have. If Tenant is not and has not been in Monetary
Default hereunder, upon expiration of the second Lease Year, this Letter of
Credit shall be returned to Tenant.
(b) Tenant Improvements. In the event that the Cash Allowance (as defined
-------------------
in Exhibit "E") exceeds Nineteen and No/100 dollars ($19.00) per square foot
-----------
(the "Excess Cash Allowance"), as security for the repayment of the Excess Cash
---------------------
Allowance, Tenant shall deliver to Landlord concurrently with the execution of
this Lease, a clean, irrevocable letter of credit in favor of Landlord in the
principal amount of the Excess Cash Allowance from a bank or other financial
institution reasonably acceptable to Landlord (the "Cash Allowance Letter of
------------------------
Credit"). In the event that Tenant is in Monetary Default (as hereinafter
------
defined in Section 8.1), then Landlord shall be entitled to draw the entire
amount of the Cash Allowance Letter of Credit or a portion thereof, at
Landlord's election, for the payment of any such Rent in default or for any
other sum which Landlord may expend or be required to expend by reason of
Tenant's Monetary Default, including, without limitation, any damages or
deficiency in the reletting of the Premises, whether such damages or deficiency
may accrue before or after reentry by Landlord. It is
11
expressly understood and agreed that the Cash Allowance Letter of Credit is not
an advance rental deposit or a measure of Landlord's damages in case of Tenant's
default. Upon Landlord's draw of all or any part of the Cash Allowance Letter of
Credit deposited as security hereunder, Tenant shall take such action with the
issuing bank for the Cash Allowance Letter of Credit as necessary to restore the
Cash Allowance Letter of Credit to its current amount. Any draw by Landlord
under the Cash Allowance Letter of Credit shall not be deemed to have cured
Tenant's default by reason of which the application is made, until such time as
the current amount of the Cash Allowance Letter of Credit is fully restored.
Actions by Landlord against Tenant for breach of this Lease shall in no way be
limited to or restricted by the amount of the Cash Allowance Letter of Credit
and any draw under the Cash Allowance Letter of Credit shall not waive any other
rights or constitute an election of remedies which Landlord may have. Provided
Tenant is not in Monetary Default hereunder, this Cash Allowance Letter of
Credit shall be reduced to a certain percentage of its initial amount as
follows: at the end of the first Lease Year to eighty percent (80%) of its
initial value; at the end of the second Lease Year to sixty percent (60%) of its
initial value; at the end of the third Lease Year to twenty-five percent (25%)
of its initial value; at the end of the fourth Lease Year to twelve and one-half
percent (12.5%) of its initial value; and shall be terminated at the end of the
fifth Lease Year.
ARTICLE IV
SECTION 4.1 Services.
--------
(a) Services Provided. Landlord shall furnish to Tenant while Tenant is
-----------------
occupying the Premises:
(i) Hot and cold domestic water in common use restrooms and toilets
in locations provided for general use and as reasonably deemed by Landlord to be
in keeping with the Project standards.
(ii) Heating and air conditioning in season from 8:00 a.m. to 6:00
p.m. on Monday through Friday and 9:00 a.m. to 1:00 p.m. on Saturday, excluding
the hereinafter defined Holidays, subject to curtailment as required by
governmental laws, rules or regulations, in such amounts as are consistent with
buildings of similar age and class in the Midtown Atlanta market, but such
service at times during weekdays other than the hours stated above, and on
Saturdays, Sundays and Holidays, shall be furnished only upon request of Tenant,
and for such service Tenant shall pay Landlord, within thirty (30) days of
receipt of an invoice an amount equal to the rate Landlord at that time is
charging for such service.
(iii) Electric lighting service for all public areas and special
service areas of the Project in the manner and to the extent consistent with
buildings of similar age and class in the Midtown Atlanta area.
(iv) Janitorial service on a five (5) day per week basis in a manner
considered standard for buildings of similar age and class in Midtown Atlanta
market.
(v) Access control for the Project; provided, however, Landlord
shall have no responsibility to prevent, and shall not be liable to Tenant for,
any liability or loss to Tenant, its
12
agents, employees and visitors arising out of losses due to theft, burglary, or
damage or injury to persons or property caused by persons gaining access to the
Premises, and Tenant hereby releases Landlord from all liability for such
losses, damage or injury.
(vi) Sufficient electrical capacity to operate (i) incandescent
lights, typewriters, calculating machines, photocopying machines and other
machines of similar low voltage electrical consumption (120/208 volts), provided
that the total rated electrical design load for said lighting and machines of
low electrical voltage shall not exceed four (4.00) ▇▇▇▇▇ per square foot of
rentable area; and (ii) fluorescent lighting and equipment of high voltage
electrical consumption (277/480 volts), provided that the total rated electrical
design load for said lighting and equipment of high electrical voltage shall not
exceed two (2.00) ▇▇▇▇▇ per square foot of rentable area (each such rated
electrical design load to be hereinafter referred to as the "Building standard
-----------------
rated electrical design load"). Tenant shall be allocated Tenant's Pro Rata
----------------------------
Share of the Building standard circuits provided on the floor(s) Tenant
occupies.
Should Tenant's connected electrical load exceed the Building standard
rated electrical design loan for either high or low voltage, or if Tenant's
electrical design requires low voltage or high voltage circuits in excess of
Tenant's Pro Rata Share of Building standard circuits, Landlord will (at
Tenant's expense) install one (1) additional high voltage panel and/or one (1)
additional low voltage panel with associated transformer in a closet located
within the Premises or in another location selected by the Landlord at
Landlord's reasonable discretion (which additional panels and transformers shall
be hereinafter referred to as the "additional electrical equipment"). If the
-------------------------------
additional electrical equipment is installed because Tenant's low or high
voltage rated electrical design load exceeds the applicable Building standard
rated electrical design load, then a meter shall also be added (at Tenant's
expense) to measure (in kilowatt hours) the electricity consumed by the
additional electrical equipment and Tenant shall pay the cost of the additional
associated consumption of electricity at a rate per kilowatt hour which shall be
the average rate per kilowatt hour (including all surcharges and taxes) for each
respective month charged to the Building by the utility selected by Landlord to
supply electricity to the Building. Landlord's obligation to install additional
panels and transformers shall be limited by the overall capacity of the
Building's existing electrical service and existing floor to floor distribution
to accommodate Tenant's request for additional panels or for circuits in excess
of Tenant's Pro Rata Share of Building standard circuits.
The design and installation of any additional electrical equipment (or
related meter) required by Tenant shall be subject to the prior approval of
Landlord, such approval not to be unreasonably withheld, conditioned or delayed.
All actual and reasonable expenses incurred by Landlord in connection with the
review and approval of any additional electrical equipment shall also be
reimbursed to Landlord by Tenant. Tenant shall also pay within thirty (30) days
the actual metered cost of electricity consumed through the additional
electrical equipment (if applicable), plus any actual accounting expenses
incurred by Landlord in connection with the metering thereof.
If any of Tenant's electrical equipment requires conditioned air in excess
of Building standard air conditioning, the same shall be installed by Landlord
(on Tenant's behalf), and Tenant shall pay all design, installation, metering
and operating costs relating thereto.
13
If Tenant requires that certain areas within the Premises must operate in
excess of the normal Building operating hours set forth above, the electricity
provided to serve such areas (measured in kilowatt hours) shall be estimated by
Landlord, using a method selected by Landlord consistent with good engineering
practice, and Tenant shall be billed each month during the Term the cost of the
electricity consumed (in kilowatt hours) by Tenant during hours other than
Building operating hours at a rate per kilowatt hour which shall be the average
rate per kilowatt hour (including all surcharges and taxes) for each respective
month charged to the Building by the utility selected by Landlord to supply
electricity to the Building.
(vii) All fluorescent bulb and ballast replacement for Building
standard lighting in all areas and all incandescent bulb replacement in public
areas, toilet and restroom areas and stairwells.
(viii) Nonexclusive operatorless passenger elevator service to the
Premises twenty-four (24) hours per day; provided, that Landlord may reasonably
limit the number of elevators in operation on weekdays after normal business
hours and on Saturdays, Sundays and Holidays.
(b) Cessation of Services.
---------------------
(i) To the extent the services described in Section 4.1(a) of this
Lease require electricity, gas and water supplied by public utilities,
Landlord's covenants thereunder shall only impose on Landlord the obligation to
use commercially reasonable efforts to cause the applicable public utilities to
furnish the same. Failure by Landlord to furnish the services described in this
Section 4.1 to any extent, or any cessation thereof, shall not render Landlord
in default hereunder or liable in any respect for damages to either person or
property, or be construed as an eviction of Tenant, or work an abatement of
Rent, or relieve Tenant from fulfillment of any covenant or agreement hereof. In
addition to the foregoing, should any of the equipment or machinery break down,
cease to function properly for any cause, or be intentionally turned off for
testing or maintenance purposes, Tenant shall have no claim for abatement or
reduction of Rent or damages on account of an interruption in service occasioned
thereby or resulting therefrom; provided, however, Landlord agrees to use
diligent efforts to repair said equipment or machinery and to restore said
services.
(ii) Notwithstanding the provisions of Section 4.1(a)(i), if
Landlord fails to furnish or delays in furnishing any service Landlord is
obligated to provide under this Lease, Tenant shall be entitled to ▇▇▇▇▇ Rent
until the service is restored, but only under the following terms and
conditions:
(A) the loss of service was not caused by, through or under
Tenant or those within Tenant's control;
(B) the loss of service must be of a material nature so as to
render the Demised Premises substantially unusable for the purposes contemplated
by this Lease;
(C) Tenant must give written notice promptly to Landlord of
the loss of service and its claim for abatement under this provision, if the
loss of service is the result of a cause within Landlord's reasonable control,
Tenant shall be entitled to abatement of Rent,
14
assuming all other conditions of this Section 4.1(b)(ii) are satisfied,
commencing on the sixth (6th) business day following the day such service is
curtailed, provided that if such service is restored or replaced within five (5)
business days of Landlord's receipt of such notice, then Tenant shall not be
entitled to any such abatement; and
(D) Landlord may prevent or stop abatement by providing
substantially the same service by temporary or alternative means until the cause
of the loss of service can be corrected; provided that such temporary or
alternative means permits Tenant to use the Demised Premises for the purposes
contemplated by this Lease.
(c) Holidays. The following dates shall collectively be known as
--------
"Holidays" and individually known as a "Holiday": New Year's Day; Memorial Day;
-------
Independence Day; Labor Day; Thanksgiving Day; Friday following Thanksgiving
Day; Christmas Day; and any other holiday designated from time to time by
Landlord. If in the case of any Holiday, a different day shall be observed than
the respective day above described, then that day which constitutes the day
observed by national banks in the city or proximate area in which the Building
is located, on account of such Holiday, shall constitute the Holiday under this
Lease.
SECTION 4.2 Keys and Locks. Landlord shall initially furnish Tenant with
--------------
___ keys for the standard corridor doors serving the Premises. Additional keys
will be furnished by Landlord upon an order signed by Tenant and at Tenant's
expense. All such keys shall remain the property of Landlord. Without the prior
written consent of Landlord, such consent not to be unreasonably withheld,
conditioned or delayed, no additional locks shall be allowed on any door of the
Premises, and Tenant shall not make or permit to be made any duplicate keys,
except those furnished by Landlord. Upon termination or expiration of this Lease
or a termination of possession of the Premises by Tenant, Tenant shall surrender
to Landlord all keys to any locks on doors entering or within the Premises.
SECTION 4.3 Graphics and Building Directory. Landlord shall provide and
-------------------------------
install, at Landlord's expense, all letters or numerals at the entrance to the
Premises, and a strip containing a listing of Tenant's name on the Building
directory board to be placed in the main lobby of the Building. All such letters
and numerals shall be in Building standard graphics. Except for the grossly
negligent acts or omissions of Landlord, its agents, contractors or employees,
Landlord shall not be liable for any inconvenience or damage occurring as a
result of any error or omission in any directory or graphics. No signs,
numerals, letters or other graphics shall be used or installed by Tenant on the
exterior of, or which may be visible from outside, the Premises, unless approved
in writing by Landlord, such approval not to be unreasonably withheld,
conditioned or delayed.
SECTION 4.4 Building Signage. Tenant, at Tenant's expense, shall have the
----------------
right to have the Landlord install a sign with Tenant's name on the western
exterior side of the Building (the "Exterior Sign"). Tenant shall be responsible
-------------
for all necessary governmental approvals and permits. Tenant shall have the
right to the maximum square footage of signage that is permitted on the western
exterior side of the Building. Tenant shall provide Landlord with the plans and
specifications for the Exterior Sign, which shall be subject to Landlord's
reasonable approval. Landlord's approval shall only mean that Landlord is
satisfied that the plans and specifications are in compliance with the terms and
conditions of this Lease (except as the same relate to
15
compliance with all applicable governmental laws, regulations or ordinances),
are aesthetically pleasing and consistent with the overall design of the
Project. If Landlord does not approve the Exterior Sign, Landlord will inform
Tenant in writing of its objections and Tenant will coordinate with Landlord to
revise the same and deliver a corrected version to Landlord for its approval.
The Tenant shall remain solely responsible for the design, inspection, and
compliance with all applicable governmental laws, rules or ordinances. Tenant's
failure to obtain exterior signage for any reason shall in no event not be a
default by the Landlord.
ARTICLE V
SECTION 5.1 Occupancy of Premises. Tenant shall throughout the Term of
---------------------
this Lease, at its own expense, maintain the Demised Premises and all
improvements thereon and keep them free from waste, damage or nuisance, and
shall deliver up the Demised Premises in a clean and sanitary condition at the
expiration or termination of this Lease or the termination of Tenant's right to
occupy the Premises by Tenant, in good repair and condition, reasonable wear and
tear excepted. In the event Tenant should neglect to maintain and/or return the
Demised Premises in such manner, Landlord shall have the right, but not the
obligation, to cause repairs or corrections to be made, and any actual and
reasonable costs therefor shall be payable by Tenant to Landlord within thirty
(30) days of demand therefor by Landlord. Upon the expiration or termination of
this Lease or the termination of Tenant's right to occupy the Premises by
Tenant, Landlord shall have the right to reenter and resume possession of the
Premises. No act or thing done by Landlord or any of Landlord's agents
(hereinafter defined) during the Term of the Lease shall be deemed an acceptance
of a surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless the same be made in writing and executed by
Landlord. Tenant shall notify Landlord at least fifteen (15) days prior to
vacating the Demised Premises and shall arrange to meet with Landlord for a
joint inspection of the Demised Premises. If Tenant fails to give such notice or
to arrange for such inspection, then Landlord's inspection of the Demised
Premises shall be deemed correct for the purpose of determining Tenant's
responsibility for repair and restoration of the Demised Premises.
SECTION 5.2 Roof Space. Tenant acknowledges and agrees that Landlord makes
----------
no representation or warranty, express or implied, regarding the suitability,
tenantability or habitability of the Roof Space. Tenant intends to use the Roof
Space for general office purposes, and for no other business or purpose in
accordance with Section 2.3 ("Tenant's Intended Use of the Roof Space"). Tenant
---------------------------------------
acknowledges that the Roof Space may not be developable for Tenant's Intended
Use of the Roof Space; however, if the Roof Space may be so developed and used
by Tenant, Landlord hereby grants Tenant the right to design, construct and
install improvements on the Roof Space and to use the Roof Space only for
Tenant's Intended Use of the Roof Space. If improvements are required to the
Building, other than the Premises, to permit development of the Roof Space for
Tenant's Intended Use of the Roof Space, Tenant shall be responsible for all
costs related to the design and construction of such improvements; however,
Landlord shall have no obligation to make or approve any such improvements, even
if Landlord's failure to make such improvements results in Tenant not being able
to use the Roof Space for Tenant's Intended Use of the Roof Space. If Tenant is
unable to develop or use the Roof Space for any reason whatsoever, including
Landlord's failure to make improvements necessary for the development of the
Roof Space, such failure shall not be a default by Landlord under this Lease. If
Tenant elects to develop or use the Roof Space, Tenant shall do so in
16
compliance all provisions of this Lease; however, Tenant agrees that Landlord
shall have no obligations of any kind whatsoever with respect to the Roof Space.
Any improvements or alterations to the Roof Space shall be in accordance with
Section 6.1(b). For purposes of the Roof Space, the indemnity in Section 6.5
shall also include the development, design, and construction of improvements in
the Roof Space. Prior to development of the Roof Space, Tenant shall provide
Landlord an engineering report from a registered structural engineer stating
that the construction of a deck in the Roof Space is structurally feasible.
Upon completion of the deck, Tenant shall provide Landlord an engineering report
from a registered structural engineer stating the maximum load capacity of the
completed deck.
SECTION 5.3 Entry for Repairs and Inspection. By giving reasonable notice
--------------------------------
and by not unreasonably interfering with Tenant's business, Tenant shall permit
Landlord and its agents to enter the Premises at all reasonable times to inspect
the same; to show the Premises to prospective tenants (within six (6) months of
the expiration of the Term of this Lease), or interested parties such as
prospective lenders and purchasers; to exercise its rights under this Lease; to
clean, repair, alter or improve the Premises or the Building; to discharge
Tenant's obligations when Tenant has failed to do so within the time required
under this Lease or within a reasonable time after written notice from Landlord,
whichever is earlier; to post "For Sale" signs at any time and to place "For
Lease" signs upon or adjacent to the Building at any time within twelve (12)
months of the expiration of the Term of this Lease. Tenant shall permit Landlord
and its agents to enter the Premises at any time in the event of an emergency.
In case of an emergency, Landlord may temporarily close entrances, doors,
corridors, elevators or other facilities without liability to Tenant by reason
of such closure.
SECTION 5.4 Hazardous Materials.
-------------------
(a) As used in this Lease, the term "Hazardous Material" shall mean and
------------------
include any substance that is or contains petroleum, asbestos, polychlorinated
biphenyls, lead, or any other substance, material or waste which is now or is
hereafter classified or considered to be hazardous or toxic under any federal,
state or local law, rule, regulation or ordinance relating to pollution or the
protection or regulation of human health, natural resources or the environment
(collectively, "Environmental Laws") or poses or threatens to pose a hazard to
------------------
the health or safety of persons on the Premises or the Project. To Landlord's
knowledge, without independent inquiry, but based upon a Phase I Environmental
Report prepared by ▇▇▇▇▇▇▇▇ Engineering Associates, Inc., dated April 23, 1998,
Landlord has removed all asbestos bearing materials requiring abatement from the
Building.
(b) Tenant agrees that during its use and occupancy of the Premises it
will not permit Hazardous Materials to be present on or about the Demised
Premises or the Project except in a manner and quantity necessary for the
ordinary performance of Tenant's business and that it will comply with all
Environmental Laws relating to the use, storage or disposal of any such
Hazardous Materials.
(c) If Tenant's use of Hazardous Materials on or about the Demised
Premises or the Project results in a release, discharge or disposal of Hazardous
Materials on, in, at, under, or emanating from, the Premises, the Project or the
Land, Tenant agrees to investigate, clean up, remove or remediate such Hazardous
Materials in full compliance with (a) the requirements of
17
(i) all Environmental Laws and (ii) any governmental agency or authority
responsible for the enforcement of any Environmental Laws; and (b) any
additional requirements of Landlord that are reasonably necessary to protect the
value of the Premises or the Land. Landlord shall also have the right, but not
the obligation, to take whatever action with respect to any such Hazardous
Materials that it deems reasonably necessary to protect the value of the
Premises, the Project or the Land. All costs and expenses paid or incurred by
Landlord in the exercise of such right shall be payable by Tenant within thirty
(30) days.
(d) By first giving notice and by not unreasonably interfering with
Tenant's business, Landlord may inspect the Premises for the purpose of
determining whether there exists on the Premises any Hazardous Materials or
other condition or activity that is in violation of the requirements of this
Lease or of any Environmental Laws. The right granted to Landlord herein to
perform inspections shall not create a duty on Landlord's part to inspect the
Premises or the Project, or liability on the part of Landlord for Tenant's use,
storage or disposal of Hazardous Materials, it being understood that Tenant
shall be solely responsible for all liability in connection therewith.
(e) Tenant shall surrender the Premises to Landlord upon the expiration or
earlier termination of this Lease free of debris, waste or Hazardous Materials,
placed on or about the Demised Premises or the Project by Tenant or its agents,
employees, contractors or invitees, and in a condition which complies with all
Environmental Laws.
(f) Except for the gross negligence of Landlord, its agents, contractors
or employees, Tenant agrees to indemnify and hold harmless Landlord from and
against any and all claims, losses (including, without limitation, loss in value
of the Demised Premises or the Project), liabilities and actual expenses
(including reasonable attorney's fees) sustained by Landlord attributable to (i)
any Hazardous Materials placed on or about the Demised Premises or the Project
by Tenant or its agents, employees, contractors or invitees or (ii) Tenant's
breach of any provision of this Section.
(g) The provisions of this Section shall survive the expiration or earlier
termination of this Lease.
SECTION 5.5 Compliance with Laws.
--------------------
(a) Americans with Disabilities Act. Tenant represents and warrants that
-------------------------------
any alterations or additions made by or on behalf of Tenant to the Demised
Premises will conform to the requirements of the Americans with Disabilities Act
(the "ADA"), Act of July 26, 1990, Pub. L. No. 101-336, 104 Stat. 327, 42 U.S.C
---
(S) 12101 et seq., as amended from time to time, and the regulations promulgated
pursuant thereto (the "Regulations"). Tenant hereby indemnifies and holds
-----------
harmless Landlord from and against any and all claims, damages, suits,
liabilities and actual attorneys' fees (including but not limited to appellate
attorneys' fees) asserted against or suffered by Landlord in any way relating to
or arising from in whole or in part, an actual or asserted claim that the
Demised Premises, or any portion thereof, is in violation of the ADA or the
Regulations.
18
(b) Other Laws. Tenant represents and warrants that it shall comply with
----------
all applicable governmental laws, statutes, ordinances, rules, regulations or
other requirements with respect to any design plans, improvements, alterations
or additions made by or on behalf of Tenant to the Demised Premises.
ARTICLE VI
SECTION 6.1 Leasehold Improvements.
----------------------
(a) Acceptance of Premises. Tenant has made a complete inspection of the
----------------------
Premises and shall accept the Premises and the Project in its "AS IS," "WHERE
IS," and "WITH ALL FAULTS" condition on the Commencement Date without recourse
to Landlord, subject to the terms of Exhibit "E", attached hereto and hereby
----------
made a part hereof, and any structural defects, punchlist items and latent
defects. Except as expressly provided in this Lease, Landlord shall have no
obligation to furnish, equip or improve the Premises or the Project. The taking
of possession of the Premises by Tenant shall be conclusive evidence against
Tenant that (i) Tenant accepts the Premises and the Project as being suitable
for its intended purpose and in a good and satisfactory condition, except for
structural defects, punchlist items and latent defects which are not readily
apparent to Tenant, (ii) acknowledges that the Premises and the Project comply
fully with Landlord's covenants and obligations under this Lease and (iii)
waives any defects in the Premises and patent defects of a cosmetic nature in
the Project.
(b) Improvements and Alterations. Tenant shall not make or allow to be
----------------------------
made (except as otherwise provided in this Lease) any improvements, alterations
or physical additions (including fixtures) in or to the Premises or the Project,
without first obtaining the written consent of Landlord, including Landlord's
written approval of Tenant's contractor(s) and of the plans, working drawings
and specifications relating thereto, such approval not to be unreasonably
withheld, conditioned or delayed. Approval by Landlord of any of Tenant's
drawings and plans and specifications prepared in connection with any
alterations, improvements, modifications or additions to the Premises or the
Project shall not constitute a representation or warranty of Landlord as to the
adequacy or sufficiency of such drawings, plans and specifications, or
alterations, improvements, modifications or additions to which they relate, for
any use, purpose or conditions, but such approval shall merely be the consent of
Landlord as required hereunder. Except as otherwise expressly provided in
Exhibit "E" attached hereto, any and all furnishing, equipping and improving of
----------
or other alteration and addition to the Premises shall be: (i) made at Tenant's
sole cost, risk and expense, and Tenant shall pay for Landlord's actual costs
incurred in connection with and as a result of such alterations or additions;
(ii) performed in a prompt, good and workerlike manner with labor and materials
of such quality as Landlord may reasonably require; (iii) constructed in
accordance with all plans and specifications approved in writing by Landlord
prior to the commencement of any such work, such approval not to be unreasonably
withheld, conditioned or delayed; (iv) prosecuted diligently and continuously to
completion so as to minimize interference with the normal business operations of
other tenants in the Project, the performance of Landlord's obligations under
this Lease or any mortgage, deed to secure debt or ground lease covering or
affecting all or any part of the Project or the Land and any work being done by
contractors engaged by Landlord with respect to or in connection with the
Project; and (v) performed by contractors approved in writing by Landlord, such
approval not to be unreasonably withheld, conditioned or delayed.
19
Except as provided in Exhibit "E", Tenant shall have no (and hereby waives all)
----------
rights to payment or compensation for any such item, Tenant shall notify
Landlord upon completion of such alterations, improvements, modifications or
additions and Landlord shall inspect same for workmanship and compliance with
the approved plans and specifications. Tenant and its contractors shall comply
with all reasonable requirements Landlord may impose on Tenant or its
contractors with respect to such work (including but not limited to, insurance,
indemnity and bonding requirements), and shall deliver to Landlord a complete
copy of the "as-built" or final plans and specifications for all alterations or
physical additions so made in or to the Premises within thirty (30) days of
completing the work. Tenant shall not place safes, vaults, filing cabinets or
systems, libraries or other heavy furniture or equipment within the Premises
without Landlord's prior written consent, such consent not to be unreasonably
withheld, conditioned or delayed. Except as provided herein and upon ten (10)
days prior written notice, Tenant shall have the right to make non-structural
alterations (walls and partitions being deemed to be structural) of up to Twenty
Thousand and No/100 Dollars ($20,000.00) without the consent of Landlord. For
any and all improvements, alterations or physical additions (including fixtures)
in or to the Premises or the Project that Tenant is permitted to perform
pursuant to the terms of this Lease, including, without limitation, the work
performed pursuant to the terms of the Work Letter Agreement, attached hereto as
Exhibit "E", but not including the installation or application of painting,
carpeting or of finishing materials performed subsequent to the work performed
pursuant to the terms of the Work Letter Agreement, Landlord shall charge Tenant
a construction management fee of two (2) percent of the total costs of such
improvements, alterations or physical additions (including fixtures).
(c) Title to Alterations. All alterations, physical additions,
--------------------
modifications or improvements in or to the Premises (including fixtures) shall,
when made, become the property of Landlord and shall be surrendered to Landlord
upon termination or expiration of this Lease or termination of Tenant's right to
occupy the Premises, whether by lapse of time or otherwise, without any payment,
reimbursement or compensation therefor; provided, however, that (i) Tenant shall
retain title to and shall remove from the Premises movable equipment or
furniture owned by Tenant, (ii) Tenant repairs any damage caused thereby, and
(iii) Tenant returns the Premises to their preexisting condition.
Notwithstanding any of the foregoing to the contrary, Landlord may require
Tenant to remove all alterations, additions or improvements to the Premises that
are other than Building Standard (as defined in Exhibit "E" attached hereto)
----------
including, without limitation, any cabling or other computer, satellite or
telecommunications equipment or hardware, whether or not such alterations,
additions, or improvements are located in the Premises upon the expiration or
earlier termination of this Lease or the termination of Tenant's right to
possession of the Premises and restore the same to Building Standard condition,
reasonable wear and tear excepted. The rights conferred upon Landlord under this
Section 6.1(c) shall be in addition to (and not in conflict with) any other
rights conferred upon Landlord by this Lease, in equity or at law.
(d) Personal Property Taxes; Sales, Use and Excise Taxes. Tenant shall be
----------------------------------------------------
responsible for and shall pay ad valorem taxes and other taxes, assessments or
charges levied upon or applicable to Tenant's personal property, the value of
Tenant's leasehold improvements in the Premises in excess of Building Standard
(and if the taxing authorities do not separately assess Tenant's leasehold
improvements, Landlord may make a reasonable allocation of the taxes assessed on
the Project to give effect to this Section 6.1(d)) and all license fees and
other
20
fees or charges imposed on the business conducted by Tenant on the Premises
before such taxes, assessment, charges or fees become delinquent. Tenant shall
also pay to Landlord with all Rent due and owing under this Lease an amount
equal to any sales, rental, excise and use taxes levied, imposed or assessed by
the State or any political subdivision thereof or other taxing authority upon
any amounts classified as Rent.
SECTION 6.2 Repairs by Landlord. All repairs, alterations or additions
-------------------
that affect the Project's structural components or major mechanical, electrical
or plumbing systems shall be made by Landlord or its contractors only, and, in
the case of any damage to such components or systems caused by Tenant or
Tenant's agents or contractors, shall be paid for by Tenant in an amount equal
to Landlord's costs plus five percent (5%) as an overhead expense. Unless
otherwise provided herein, Landlord shall not be required to make any
improvements to or repairs of any kind or character to the leasehold
improvements located in the Premises during the Term, except such repairs as
Landlord deems necessary for normal maintenance operations of the Building.
SECTION 6.3 Repairs by Tenant. Subject to Section 6.2 of this Lease,
-----------------
Tenant shall be responsible, at its own cost and expense, for all repair or
replacement of any damage to the leasehold improvements in the Demised Premises,
together with any damage to the Project or any part thereof caused by Tenant or
any of Tenant's agents or contractors. Except insofar as Landlord is expressly
obligated under this Lease to maintain and repair the Building, in addition to
the maintenance and repair obligations of Tenant otherwise expressly set forth
in this Lease, Tenant is also obligated to perform, at Tenant's own cost and
expense and risk, all other maintenance and repairs necessary or appropriate to
cause the Premises to be maintained in good condition and suitable for Tenant's
intended commercial purpose.
SECTION 6.4 Liens. Tenant shall keep the Premises and the Building free
-----
from any liens, including but not limited to liens filed against the Premises by
any governmental agency, authority or organization, arising out of any work
performed, materials ordered or obligations incurred by or on behalf of Tenant,
and Tenant hereby agrees to indemnify and hold Landlord, its agents, employees,
independent contractors, officers, members, directors, partners, and
shareholders harmless from any liability, cost or expense for such liens. Tenant
shall cause any such lien imposed to be released of record by payment or posting
of the proper bond acceptable to Landlord within thirty (30) days after the
earlier of imposition of the lien or written request by Landlord. Tenant shall
give Landlord written notice of Tenant's intention to perform work on the
Premises which might result in any claim of lien, at least ten (10) days prior
to the commencement of such work to enable Landlord to post and record a notice
of nonresponsibility or other notice deemed proper before commencement of any
such work. If Tenant fails to remove any lien within the prescribed ten (10) day
period, then Landlord may do so at Tenant's expense and Tenant's reimbursement
to Landlord for such amount, including reasonable attorneys' fees and costs,
shall be deemed Additional Rent. Tenant shall have no power to do any act or
make any contract which may create or be the foundation for any lien, mortgage
or other encumbrance upon the reversion or other estate of Landlord, or of any
interest of Landlord in the Premises, the Building or the Project.
SECTION 6.5 Indemnification.
---------------
21
(a) Indemnification by Tenant. Tenant shall defend, indemnify and hold
-------------------------
harmless Landlord, its agents, employees, officers, directors, members, partners
and shareholders ("Landlord's Related Parties") from and against any and all
--------------------------
liabilities, judgments, demands, causes of action, claims, losses, damages,
costs and expenses, including reasonable attorneys' fees and costs, arising out
of the use, occupancy, conduct, operation, or management of the Premises by, or
the negligence, gross negligence, recklessness or willful misconduct of, Tenant,
its officers, contractors, licensees, agents, servants, employees, guests,
invitees, or visitors in or about the Project, the Building or the Premises or
arising from any breach or default under this Lease by Tenant, or arising from
any accident, injury, or damage, howsoever and by whomsoever caused, to any
person or property, occurring in or about the Demised Premises. This
indemnification shall survive termination or expiration of this Lease. This
provision shall not be construed to make Tenant responsible for loss, damage,
liability or expense resulting from injuries to third parties caused by the sole
gross negligence or willful misconduct of Landlord, or its officers,
contractors, licensees, agents, employees, or invitees.
(b) Indemnification by Landlord. Except as otherwise stated in this
---------------------------
Lease, Landlord shall defend, indemnify and hold harmless Tenant, its agents,
employees, officers, directors, members, partners and shareholders ("Tenant's
--------
Related Parties") from and against any and all liabilities, judgments, demands,
---------------
causes of action, claims, losses, damages, costs and expenses, including
reasonable attorneys' fees and costs, arising out of the willful misconduct or
gross negligence of, Landlord, its officers, contractors, licensees, agents,
servants, employees, guests, invitees, or visitors in or about the Project, the
Building or the Premises. This indemnification shall survive termination or
expiration of this Lease. This provision shall not be construed to make Landlord
responsible for loss, damage, liability or expense resulting from injuries to
third parties caused by the sole negligence or willful misconduct of Tenant, or
its officers, contractors, licensees, agents, employees, or invitees.
ARTICLE VII
SECTION 7.1 Condemnation.
------------
(a) Total Taking. In the event of a taking or damage related to the
------------
exercise of the power of eminent domain, by any agency, authority, public
utility, person, corporation or entity empowered to condemn property (including
without limitation a voluntary conveyance by Landlord in lieu of such taking or
condemnation) (individually, a "Taking") of (i) the entire Premises; or (ii) so
------
much of the Premises as to prevent or substantially impair its use by Tenant
during the Term of this Lease (individually, a "Total Taking"), the rights of
------------
Tenant under this Lease shall cease and terminate as of the date upon which
title to the property taken passes to and vests in the condemnor or the
effective date of any order for possession if issued prior to the date title
vests in the condemnor ("Date of Taking").
--------------
(b) Partial Taking. In the event of a Taking of only a part of the
--------------
Premises which does not constitute a Total Taking during the Term of this Lease
(individually, a "Partial Taking"), the rights of Tenant under this Lease shall
--------------
cease and terminate as of the Date of Taking only with respect to the portion of
the Premises so taken, an adjustment to the Rent shall be made based upon the
reduced area of the Premises, and except as so modified, this Lease shall remain
in full force and effect with respect to the reduced area of the Premises.
22
(c) Termination by Landlord. In the event of a Taking of the Building
-----------------------
(other than the Premises) such that, in Landlord's reasonable opinion, the
Building cannot be restored in a manner that makes its continued operation
practically or economically consistent with Landlord's current or projected
return on equity or if restoration cannot be completed within one hundred eighty
(180) days, Landlord may terminate this Lease by giving notice to Tenant within
ninety (90) days after the date notice of such Taking is received by Landlord.
Tenant shall vacate the Premises within ninety (90) days after receipt of
Landlord's notice to Tenant or the last day upon which Landlord is in possession
of the Building, if such date is shorter than said ninety (90) day period.
(d) Rent Adjustment. If this Lease is terminated pursuant to this
---------------
Section 7.1, Landlord shall refund to Tenant any prepaid unaccrued Rent and any
other sums due and owing to Tenant (less any sums then due and owing Landlord by
Tenant), and Tenant shall pay to Landlord any remaining sums due and owing
Landlord under this Lease, each prorated as of the Date of Taking where
applicable.
(e) Repair. If this Lease is not terminated as provided for in this
------
Section 7.1, then within one hundred eighty (180) days Landlord, at its expense,
shall promptly repair and restore the Building, Project and/or the Premises to
approximately the same condition that existed at the time Tenant entered into
possession of the Premises, wear and tear excepted (and Landlord shall have no
obligation to repair or restore Tenant's improvements to the Premises or
Tenant's personal property), except for the part taken, so as to render the
Building or Project as complete an architectural unit as practical, but only to
the extent of the condemnation award received by Landlord for the damage.
(f) Awards and Damages. Landlord reserves all rights to damages and
------------------
awards paid because of any Partial or Total Taking of the Premises or the
Project. Tenant assigns to Landlord any right Tenant may have to the damages or
award. Furthermore, Tenant shall not make claims against Landlord or the
condemning authority for damages. Notwithstanding, Tenant may claim and recover
from the condemning authority a separate award for Tenant's moving expenses,
business dislocation damages, Tenant's personal property and any other award
that would not reduce the award payable to Landlord.
(g) Temporary Taking. Notwithstanding anything to the contrary
----------------
contained in this Section 7.1, if, during the Term, the use or occupancy of any
part of the Building or the Premises shall be taken or appropriated temporarily
for any public or quasi-public use under any governmental law, ordinance, or
regulations, or by right of eminent domain for a period of less than seven (7)
days (all other Takings being a Total Taking or a Partial Taking), this Lease
shall be and remain unaffected by such taking or appropriation and Tenant shall
continue to pay in full all Rent payable hereunder by Tenant during the Term. In
the event of any such temporary appropriation or taking, Tenant shall be
entitled to receive that portion of any award which represents compensation for
the loss of use or occupancy of the Premises during the Term, and Landlord shall
be entitled to receive that portion of any award which represents the cost of
restoration and compensation for the loss of use or occupancy of the Premises
after the end of the Term.
23
Section 7.2 Force Majeure. Neither Landlord nor Tenant shall be required
-------------
to perform any term, provision, agreement, condition or covenant in this Lease
(other than the obligations of Tenant to pay Rent as provided herein) so long as
such performance is delayed or prevented by "Force Majeure", which shall mean
-------------
acts of God, strikes, injunctions, lockouts, material or labor restrictions by
any governmental authority, civil riots, floods, fire, theft, public enemy,
insurrection, war, court order, requisition or order of governmental body or
authority, and any other cause not reasonably within the control of Landlord or
Tenant and which by the exercise of due diligence Landlord or Tenant is unable,
wholly or in part, to prevent or overcome. Neither Landlord nor any mortgagee
shall be liable or responsible to Tenant for any loss or damage to any property
or person occasioned by any Force Majeure, or for any damage or inconvenience
which may arise through repair or alteration of any part of the Project as a
result of any Force Majeure.
Section 7.3 Fire or Other Casualty Damage.
-----------------------------
(a) If any portion of the Premises shall be destroyed or damaged by fire
or any other casualty, Tenant shall immediately give notice thereof to Landlord.
If any portion of the Premises or Project shall be destroyed or damaged by fire
or any other casualty then, at the reasonable option of Landlord, Landlord may
restore and repair the portion of the Premises or Project damaged and, if the
Premises are rendered untenantable in whole or in part by reason of such
casualty as determined by Landlord, Tenant shall be entitled to an equitable
abatement of the Rent hereunder (subject to the limitation in Section 7.3(c)
below) until such time as the damaged portion of the Premises (exclusive of any
of Tenant's personal property) are repaired or restored by Landlord to the
extent required hereby or Landlord may terminate this Lease whereupon all Rent
accrued up to the time of such casualty and any other sums due and owing shall
be paid by Tenant to Landlord (less any sums then due and owing Tenant by
Landlord) and any remaining sums due and owing by Landlord to Tenant shall be
paid to Tenant. If not practical or if not consistent with Landlord's current or
projected return of equity, Landlord shall not have any obligation to repair or
restore any such destruction or damage.
(b) Repair. Landlord shall use reasonable efforts to give Tenant written
------
notice of its decisions, estimates or elections under this Section 7.3 within
thirty (30) days after any such damage or destruction. If Landlord has elected
to repair and restore the Premises or other portion of the Project within one
hundred eighty (180) days, this Lease shall continue in full force and effect,
and the repairs will be made within a reasonable time thereafter (not to exceed
one (1) year), subject to the provisions of Section 7.2 of this Lease. Should
the repairs not be completed within that period, both Landlord and Tenant shall
each have the option of terminating this Lease by written letter of termination.
If this Lease is terminated as herein permitted, Landlord shall refund to Tenant
any prepaid Rent (unaccrued as of the date of damage or destruction) and any
other sums due and owing by Landlord to Tenant (less any sums then due and owing
Landlord by Tenant) and any remaining sums due and owing by Tenant to Landlord
shall be paid to Landlord. If Landlord elects to rebuild the Premises or other
portion of the Project, Landlord shall only be obligated to restore or rebuild
the Premises or other portion of the Project to approximately the same condition
as existed at the time Tenant entered into possession of the Premises, wear and
tear excepted and not be required to rebuild, repair or replace any part of
Tenant's personal property. Notwithstanding anything contained in this Lease to
the contrary, if Landlord shall elect to repair and restore the Premises or
other portion of the Project pursuant
24
to this Section 7.3, in no event shall Landlord be required to expend under this
Article VII any amount in excess of the proceeds actually received from the
insurance carried by Landlord pursuant to Section 7.4(a) of this Lease. 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 destruction or
the disregard of the repair thereof, except for the grossly negligent acts or
omissions of Landlord, its agents, contractors or employees.
(c) Negligence of Tenant. Notwithstanding the provisions of Sections
--------------------
7.3(a) and 7.3(b) of this Lease, if the Premises, the Project or any portion
thereof, are damaged by fire or other casualty resulting from the fault or
negligence of Tenant or any of Tenant's employees, agents or contractors, the
Rent under this Lease will not be abated during the repair of that damage, and
Tenant will be liable to Landlord for the cost and expense of the repair and
restoration of the Premises, the Project or any part thereof, caused thereby to
the extent that cost and expenses is not covered by insurance proceeds
(including without limitation the amount of any insurance deductible).
Section 7.4 Insurance.
---------
(a) Landlord shall maintain, or cause to be maintained, standard fire and
extended coverage insurance on the Project and Building Standard tenant
improvements (excluding leasehold improvements by Tenant in excess of Building
Standard and Tenant's personal property) in amounts considered by Landlord to be
reasonable and customary for similar buildings in the Midtown Atlanta market.
Landlord may carry any other types or forms of insurance which Landlord deems
necessary, desirable or prudent to carry from time to time. The insurance
required to be obtained by Landlord may be obtained through blanket or master
policies insuring other entities or properties owned or controlled by Landlord.
(b) At all times during the term of this Lease Tenant shall, at its sole
expense, procure and maintain the following types of insurance coverage:
(i) Commercial General Liability Insurance. Not less than One
--------------------------------------
Million and No/100 Dollars ($1,000,000.00) coverage of commercial general
liability insurance ("Liability Insurance") written on an "occurrence" policy
-------------------
form, covering bodily injury, property damage, personal injury and advertising
injury, arising out of or relating, directly or indirectly, to Tenant's business
operations, conduct, assumed liabilities or use or occupancy of the Premises or
any other part of the Project. Tenant's Liability Insurance will also include
the broadest available form of contractual liability coverage. It is the intent
of Landlord and Tenant that Tenant's contractual liability coverage will provide
coverage to the maximum extent possible of Tenant's indemnification obligations
under this Lease. Tenant will cause Landlord and any lender of Landlord to be
named as "additional insureds". Tenant's Liability Insurance policies will be
endorsed as needed to provide cross-liability coverage for Tenant, Landlord and
any lender of Landlord, and will provide for severability of interests. Not more
frequently than every five (5) years, Tenant shall adjust said insurance
coverage to maintain coverage of One Million and No/100 Dollars ($1,000,000.00)
after adjusting for changes in the Consumer Price Index (for Urban Wage Earners
and Clerical Workers U.S. City Average All Items (1982=100) published by the
Bureau of Labor Statistics, United States Department of Labor).
25
(ii) Property Insurance. Tenant will procure and maintain property
------------------
insurance coverage ("Property Insurance") for the following: (i) all furniture,
------------------
trade fixtures, office equipment, merchandise and all other items of Tenant's
personal property in, on, at or about the Premises or any other part of the
Project; (ii) all leasehold improvements to the Premises constructed pursuant to
Tenant's obligations hereunder, and other improvements, betterments and
alterations to the Premises. Tenant's Property Insurance must be written on the
broadest available "all risk" ("special form") policy form or an equivalent form
acceptable to Landlord, include an agreed-amount endorsement for no less than
one hundred percent (100%) of the full replacement cost (new without deduction
for depreciation) of the covered items and property, be written in amounts of
coverage that meet any coinsurance requirements of the policy, and include
vandalism and malicious mischief coverage, and sprinkler leakage coverage.
Landlord must be named as an "insured as its interest may appear" under Tenant's
Property Insurance.
(iii) Workers' Compensation and Employer Liability Coverage. Tenant
-----------------------------------------------------
will procure and maintain workers' compensation insurance as required by law and
employer's liability insurance of at least One Hundred Thousand and No/100
Dollars ($100,000.00). Both such policies will contain waivers of subrogation in
favor of Landlord. Tenant, and not Landlord, will be liable for any costs or
damages in excess of the statutory limit for which Tenant would, in the absence
of workers' compensation, be liable.
(iv) Business Income and Extra Expense Coverage. Tenant will also
------------------------------------------
procure and maintain business income/business interruption insurance and extra
expense coverage (collectively, "Business Income Insurance") with coverage
-------------------------
amounts that will reimburse Tenant for all direct or indirect loss of income and
charges and costs incurred arising out of all named perils insured against by
Tenant's Property Insurance coverage, including prevention of, or denial of use
of or access to, all or part of the Premises or the Project, as a result of
those named perils. The Business Income Insurance coverage must provide coverage
for no less than twelve (12) months of the loss of income, charges, and costs
contemplated under this Lease.
(c) Landlord shall be named as an additional insured, with respect to
Liability Insurance, and as an additional insured, as its interests may appear,
with respect to Property Insurance, in all of Tenant's insurance policies
pertaining to the Premises and/or Project. Tenant shall deliver to Landlord, on
or prior to the Commencement Date (with respect to the initial policy or
policies) and not less than ten (10) days prior to the expiration date of such
policy or policies (with respect to all renewals of said policies), with respect
to both Liability Insurance and Property Insurance: (i) the policy or policies
of such insurance; (ii) a certificate of insurance using ▇▇▇▇▇ Form 27 (which
shall be appropriately modified to cover Liability Insurance) from its insurance
company, certifying (x) the existence and amounts of coverage of such insurance,
and (y) that Landlord is named as an additional insured as described in the
first sentence of this paragraph; and (iii) an endorsement on ISO Form 20 26
reflecting Landlord as an additional insured as described above. Any insurance
required to be maintained by Tenant under this Section 7.4 may be maintained
under a so-called blanket policy or policies; provided Tenant, at Tenant's sole
expense, procures a "per location" endorsement, or equivalent reasonably
acceptable to Landlord, so that the general aggregate and other limits apply
separately and specifically to the Premises. Landlord must give its prior
written approval to all deductibles and self-insured retentions under Tenant's
policies. Landlord shall have the right to approve the identity and financial
condition of Tenant's insurers, and such approval shall not be unreasonably
26
withheld. Failure of Tenant to deliver any policies or certificates of insurance
to Landlord shall not release Tenant from the obligation of obtaining the above-
required coverage.
(d) In the event that Tenant fails to take out or maintain any policy
required by this Section 7.4 to be maintained by Tenant, such failure shall be a
defense to any claim asserted by Tenant against Landlord by reason of any loss
sustained by Tenant that would have been covered by such policy, notwithstanding
that such loss may have been proximately caused solely or partially by the
negligence or willful misconduct of Landlord or any of Landlord's Related
Parties. If Tenant does not procure insurance as required, Landlord may, upon
advance written notice to Tenant, cause this insurance to be issued and Tenant
shall pay to Landlord the premium for such insurance within ten (10) days of
Landlord's demand, plus interest at the past due rate provided for in Section
3.1(c) of this Lease until repaid by Tenant. All policies of insurance required
to be maintained by Tenant shall specifically make reference to the
indemnifications by Tenant in favor of Landlord under this Lease and shall
provide that Landlord shall be given at least thirty (30) days' prior written
notice of any cancellation or nonrenewal of any such policy. All insurance
policies obtained by Tenant shall be written as primary policies (primary over
any insurance carried by Landlord), not contributing with and not in excess of
coverage which Landlord may carry, if any.
(e) Landlord acknowledges that the insurance information stated in
Exhibit "H" attached hereto and by this reference incorporated herein meets the
----------
requirements of this Section 7.4 of this Lease.
Section 7.5 Waiver of Subrogation Rights. Each party hereto waives all
----------------------------
rights of recovery, claims, actions or causes of actions arising in any manner
in its (the "Injured Parties") favor and against the other party for loss or
---------------
damage to the Injured Party's property located within or constituting a part or
all of the Project, to the extent the loss or damage: (a) is covered by the
Injured Party's insurance; or (b) would have been covered by the insurance the
Injured Party is required to carry under this Lease, whichever is greater,
regardless of the cause or origin, including the sole, contributory, partial,
joint, comparative or concurrent negligence of the other party. This waiver also
applies to each party's directors, officers, employees, shareholders, partners,
representatives and agents. All insurance carried by either Landlord or Tenant
covering the losses and damages described in this Section 7.5 shall provide for
such waiver of rights of subrogation by the Injured Party's insurance carrier to
the maximum extent that the same is permitted under the laws and regulations
governing the writing of insurance within the state in which the Building is
located. Both parties hereto are obligated to obtain such a waiver and provide
evidence to the other party of such waiver. The waiver set forth in this Section
7.5 shall be in addition to, and not in substitution for, any other waivers,
indemnities or exclusions of liability set forth in this Lease.
ARTICLE VIII
Section 8.1 Default by Tenant. The occurrence of any one or more of the
-----------------
following events shall constitute a default (a "Default") by Tenant under this
-------
Lease:
27
(a) Tenant shall fail to pay to Landlord any Rent, Additional Rent or
other monetary charges due (after ten (10) days prior written notice or as
otherwise specifically provided herein) from Tenant hereunder as and when due
and payable (a "Monetary Default");
(b) Tenant breaches or fails to comply with any term, provisions,
conditions or covenant of this Lease, other than as described in Section 8.1(a),
or with any of the Building rules and regulations now or hereafter established
to govern the operation of the Project, provided that such breach or failure is
not cured within thirty (30) days after written notice from Landlord of such
default or such longer period of time as may be reasonably necessary if Tenant
is proceeding with its best efforts to cure such default, but in no event later
than ninety (90) days from the date Tenant receives notice of such default;
(c) A Transfer (hereinafter defined) other than a Permitted Transfer (as
hereinafter defined) shall occur, without the prior written approval of
Landlord;
(d) The interest of Tenant under this Lease shall be levied on under
execution or other legal process;
(e) Any petition in bankruptcy or other insolvency proceedings shall be
filed by or against Tenant, or any petition shall be filed or other action taken
to declare Tenant a bankrupt or to delay, reduce or modify Tenant's debts or
obligations or to reorganize or modify Tenant's capital structure or
indebtedness or to appoint a trustee, receiver or liquidator of Tenant or of any
property of Tenant, or any proceeding or other action shall be commenced or
taken by any governmental authority for the dissolution or liquidation of Tenant
and, within thirty (30) days hereafter, Tenant fails to secure a discharge
thereof;
(f) Tenant shall become insolvent, or Tenant shall make an assignment for
the benefit of creditors, or Tenant shall make a transfer in fraud of creditors,
or a receiver or trustee shall be appointed for Tenant or any of its properties;
and
(g) Tenant shall do or permit to be done anything which creates a lien
upon the Premises or the Project.
Section 8.2 Landlord's Remedies. Upon occurrence of any default by Tenant
-------------------
under this Lease and (i) if the event of default described in Section 8.1(a) is
not cured within five (5) days after written notice from Landlord of such
default; or (ii) the events described in Sections 8.1(d) and (g) are not cured
within thirty (30) days after written notice from Landlord of such default or
such longer period of time as may be reasonably necessary if Tenant is
proceeding with its best efforts to cure such default, but in no event later
than ninety (90) days from the date Tenant receives notice of such default
(there being no notice and cure period for events of default described in
Sections 8.1(b), (c), (e) and (f) except as otherwise set forth herein),
Landlord shall have the option to do and perform any one or more of the
following in addition to, and not in limitation of, any other remedy or right
permitted it by law or in equity by this Lease:
(a) Continue this Lease in full force and effect, and this Lease shall
continue in full force and effect as long as Landlord does not terminate this
Lease, and Landlord shall have the right to collect Rent, Additional Rent, and
other charges when due.
28
(b) Terminate this Lease, and Landlord may forthwith repossess the
Premises and be entitled to recover as damages a sum of money equal to the total
of (i) the cost of recovering the Premises, (ii) the actual and customary cost
of removing and storing Tenant's or any other occupant's property, (iii) the
unpaid Rent and any other sums accrued hereunder at the date of termination,
(iv) a sum equal to the amount, if any, by which the present value of the total
Rent and other benefits which would have accrued to Landlord under this Lease
for the remainder of the Term, if the terms of this Lease had been fully
complied with by Tenant, discounted at ten percent (10%) per annum, exceeds the
total fair market value of the Premises for the balance of the Term (it being
the agreement of the parties hereto that Landlord shall receive the benefit of
its bargain), (v) the actual and customary cost of reletting the Premises
including, without limitation, the actual and customary cost of restoring the
Premises to the condition necessary to rent the Premises at the prevailing
market rental rate, normal wear and tear excepted, (vi) the amount of any
unamortized improvements (straight line basis over 60 months) to the Premises
paid for by Landlord, (vii) the amount of any unamortized brokerage commission
or other costs paid by Landlord in connection with the leasing of the Premises
and (viii) any other sum of money or damages owed by Tenant to Landlord. In the
event Landlord shall elect to terminate this Lease, Landlord shall at once have
all the rights of reentry upon the Premises pursuant to Section 8.4 of this
Lease.
(c) Terminate Tenant's right of occupancy of the Premises and reenter and
repossess the Premises by entry, forcible entry or detainer suit or otherwise,
without acceptance of surrender of possession of the Premises, and without
becoming liable for damages or guilty of trespass, in which event Landlord may,
but shall be under no obligation to, relet the Premises or any part thereof for
the account of Tenant (nor shall Landlord be under any obligation to relet the
Premises before Landlord relets or leases any other portion of the Project or
any other property under the ownership or control of Landlord) for a period
equal to or lesser or greater than the remainder of the Term of the Lease on
whatever terms and conditions Landlord, at Landlord's sole discretion, deems
advisable, Tenant shall be liable for and shall pay to Landlord all Rent payable
by Tenant under this Lease (plus interest at the past due rate provided in
Section 3.1(c) of this Lease if in arrears) plus an amount equal to (i) the
actual and customary cost of recovering possession of the Premises, (ii) the
actual and customary cost of removing and storing any of Tenant's or any other
occupant's property left on the Premises or the Project after reentry, (iii) the
actual and customary cost of decorations, repairs, changes, alterations and
additions to the Premises and the Project, (iv) the actual and customary cost of
any attempted reletting or reletting and the collection of the rent accruing
from such reletting, (v) the actual and customary cost of any brokerage fees or
commissions payable by Landlord in connection with any reletting or attempted
reletting, (vi) any other actual and customary costs incurred by Landlord in
connection with any such reletting or attempted reletting, (vii) the amount of
any unamortized improvements (straight line basis over 60 months) to the
Premises paid for by Landlord, (viii) the amount of any unamortized brokerage
commissions or other costs paid by Landlord in connection with the leasing of
the Premises and (ix) any other sum of money or damages owed by Tenant to
Landlord at law, in equity or hereunder, all reduced by any sums received by
Landlord through any reletting of the Premises; provided, however, that in no
event shall Tenant be entitled to any excess of any sums obtained by reletting
over and above Rent provided in this Lease to be paid by Tenant to Landlord. For
the purpose of such reletting Landlord is authorized to decorate or to make any
repairs, changes, alterations or additions in or to the Premises that may be
necessary. Landlord may file suit to recover any sums falling due under the
terms of this
29
Section 8.2(c) from time to time, and no delivery to or recovery by Landlord of
any portion due Landlord hereunder shall be any defense in any action to recover
any amount not theretofore reduced to judgment in favor of Landlord. No
reletting shall be construed as an election on the part of Landlord to terminate
this Lease unless a written notice of such intention is given to Tenant by
Landlord. Notwithstanding any such reletting without termination, Landlord may
at any time thereafter elect to terminate this Lease for such previous default
and/or exercise its rights under Section 9.3(b) of this Lease.
(d) Enter upon the Premises and do whatever Tenant is obligated to do
under the terms of this Lease; and Tenant agrees to reimburse Landlord within
thirty (30) days for any expenses which Landlord may incur in effecting
compliance with Tenant's obligations under this Lease plus five percent (5%) of
such cost to cover overhead plus interest at the past due rate provided in this
Lease, and Tenant further agrees that Landlord shall not be liable for any
damages resulting to Tenant from such action, except for the gross negligence of
Landlord, its agents, contractors and employees. No action taken by Landlord
under this Section 8.2(d) shall relieve Tenant from any of its obligations under
this Lease or from any consequences or liabilities arising from the failure to
perform such obligations.
(e) Without waiving such default, apply all or any part of the Letter of
Credit or the Cash Allowance Letter of Credit (collectively, the "Letters of
----------
Credit") to cure the Default or to any damages suffered as a result of the
------
Default to the extent of the amount of damages suffered. Such Default shall not
be deemed cured until Tenant causes the amount of the Letters of Credit to be
reinstated to the amount of the Letters of Credit immediately prior to the use
by Landlord of the Letters of Credit to cure the default of the Tenant.
(f) Change all door locks and other security devices of Tenant at the
Premises and/or the Project, and Landlord shall not be required to provide the
new key to the Tenant except during Tenant's regular business hours, and only
upon the condition that Tenant has cured any and all defaults hereunder and in
the case where Tenant owes Rent to the Landlord, reimbursed Landlord for all
Rent and other sums due Landlord hereunder. Landlord, on terms and conditions
satisfactory to Landlord in its sole discretion, may upon request from Tenant's
employees, enter the Premises for the purpose of retrieving therefrom personal
property of such employees, provided, Landlord shall have no obligation to do
so.
(g) Exercise any and all other remedies available to Landlord in this
Lease, at law or in equity.
Section 8.3 Waiver of Duty to Relet or Mitigate. Notwithstanding anything
-----------------------------------
contained herein to the contrary, to the full extent permitted under applicable
law, Tenant and Landlord agree that Landlord shall have no duty to relet the
Premises or otherwise mitigate damages under this Lease and Tenant hereby
releases Landlord from any and all duty to relet the Premises or otherwise
mitigate damages. Tenant agrees that Landlord shall not be liable, nor shall
Tenant's obligations hereunder be diminished, because of Landlord's failure to
relet the Premises or collect rent due with respect to such reletting.
Furthermore, Tenant hereby waives any and all rights to plead such failure of
Landlord to mitigate damages as an affirmative defense in any proceeding based
on any Default by Tenant under this Lease. In the event, and only in the event,
that (despite such waiver and contrary to the intent of the parties hereunder)
applicable
30
law requires Landlord to attempt to mitigate damages, Landlord and Tenant agree
that any such duty to mitigate shall be satisfied and Landlord shall be deemed
to have used objectively reasonable efforts to fill the Premises by doing the
following: (a) posting a "For Lease" sign on the Premises; (b) advising
Landlord's leasing agent of the availability of the Premises; and (c) advising
at least one outside commercial brokerage entity of the availability of the
Premises; provided, however, that Landlord shall not be obligated to relet the
Premises before leasing any other unoccupied portions of the Building, the
Project and any other property under the ownership or control of Landlord or
Landlord's affiliates. If Landlord receives any payments from the reletting of
the Premises and is required by law to mitigate damages (despite the intent of
the parties hereunder), any such payment shall first be applied to any costs or
expenses incurred by Landlord as a result of Tenant's Default under this Lease.
Notwithstanding the foregoing, Landlord agrees to use commercially reasonable
efforts to market and lease the property; provided, however, (i) Landlord may
offer the Demised Premises, or a portion of the Demised Premises, such upon
terms and conditions satisfactory to Landlord; (ii) Landlord shall have no
obligation to make or accept an offer for all or a portion of the Demised
Premises if Landlord has any unleased or vacant space at the Project and the
prospective tenant may be interested in such other space; and (iii) the decision
to make or accept an offer to any prospective tenant shall be Landlord's sole
decision and the failure of Landlord to make or accept an offer shall create no
liability of Landlord to Tenant.
Section 8.4 Reentry. If Tenant fails to allow Landlord to reenter and
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repossess the Premises, Landlord shall have full and free license to enter into
and upon the Premises with or without process of law for the purpose of
repossessing the Premises, expelling or removing Tenant and any others who may
be occupying or otherwise within the Premises, removing any and all property
therefrom and changing all door locks of the Premises. Landlord may take these
actions without being deemed in any manner guilty of trespass, eviction or
forcible entry or detainer, without accepting surrender of possession of the
Premises by Tenant.
Section 8.5 Rights of Landlord in Bankruptcy. Nothing contained in this
--------------------------------
Lease shall limit or prejudice the right of Landlord to prove for and obtain in
proceedings for bankruptcy or insolvency, by reason of the expiration or
termination of this Lease or the termination of Tenant's right of occupancy, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, the damages are to be
proved, whether or not the amount be greater, equal to, or less than the amount
of the loss or damages referred to in this Section 8.5. In the event that under
applicable law, the trustee in bankruptcy or Tenant has the right to affirm this
Lease and continue to perform the obligations of Tenant hereunder, such trustee
or Tenant shall, in such time period as may be permitted by the bankruptcy court
having jurisdiction, cure all defaults of Tenant hereunder outstanding as of the
date of the affirmance of this Lease and provide to Landlord such adequate
assurances as are described below to ensure Landlord of the continued
performance of Tenant's obligations under this Lease. In such event, Tenant or
any trustee for Tenant may only assume this Lease if (A) it cures or provides
adequate assurance that the trustee will promptly cure any default hereunder,
(B) compensates or provides adequate assurance that Tenant will promptly
compensate Landlord for any actual pecuniary loss to Landlord resulting from
Tenant's default, and (C) provides adequate assurance of performance during the
fully stated Term hereof of all of the terms, covenants, and provisions of this
Lease to be performed by Tenant. In no event after the assumption of this Lease
shall any then existing default remain uncured for a period in excess
31
of the earlier of ten (10) days or the time period set forth herein. Adequate
assurance of performance of this Lease as set forth hereinabove shall include,
without limitation, adequate assurance of (A) the source of Rental reserved
hereunder, and (B) that the assumption of this Lease will not breach any
provision hereunder.
Section 8.6 Waiver of Certain Rights. Tenant acknowledges that the
------------------------
Premises are to be used for commercial purposes, and Tenant hereby expressly
waives the protections and rights set forth in Official Code of Georgia
Annotated Section 44-7-52. Tenant hereby expressly waives any rights Tenant may
have to any rights of redemption whether currently existing or arising in the
future under any applicable laws. Tenant hereby expressly waives any and all
liens (whether statutory, contractual or constitutional) it may have or acquire
as a result of a breach by Landlord under this Lease. Tenant hereby expressly
waives and releases any statutory lien rights it may have against Landlord,
including, without limitation, the rights conferred upon applicable state law.
Section 8.7 NonWaiver. Failure on the part of Landlord to complain of any
---------
action or nonaction on the part of Tenant, no matter how long the same may
continue, shall not be deemed to be a waiver by Landlord of any of its rights
under this Lease. Further, it is covenanted and agreed that no waiver at any
time of any of the provisions hereof by Landlord shall be construed as a waiver
of any of the other provisions hereof and that a waiver at any time of any of
the provisions hereof shall not be construed as a waiver at any subsequent time
of the same provisions. The consent or approval by Landlord to or of any action
by Tenant requiring Landlord's consent shall not constitute Landlord's consent
or approval to or of any subsequent similar act by Tenant.
Section 8.8 Holding Over. In the event Tenant remains in possession of
------------
the Premises after the expiration or termination of this Lease without the
execution of a new lease, then Tenant, at Landlord's option, shall be deemed to
be occupying the Premises as a tenant at will at a base rental equal to one
hundred fifty percent (150%) of the then applicable Base Rent, and shall
otherwise remain subject to all the conditions, provisions and obligations of
this Lease insofar as the same are applicable to a tenant at will, including
without limitation the payment of all other Rent; provided, however, nothing
contained herein shall require Landlord to give Tenant more than thirty (30)
days' prior written notice to terminate Tenant's tenancy-at-will. No holding
over by Tenant after the expiration or termination of this Lease shall be
construed to extend or renew the Term or in any other manner be construed as
permission by Landlord to hold over. Tenant shall indemnify Landlord (y) against
all claims for damages by any other tenant to whom Landlord may have leased all
or any part of the Premises effective upon the termination or expiration of this
Lease, and (z) for all other losses, costs and expenses, including reasonable
attorneys' fees, incurred by reason of such holding over. Landlord shall notify
Tenant of the damages described in (y) above prior to the expiration of the Term
of this Lease and if Landlord fails to so notify Tenant, Tenant shall not be
liable for such damages.
Section 8.9 Abandonment of Personal Property. Any personal property left
--------------------------------
in the Premises or any personal property of Tenant left about the Project at the
expiration or termination of this Lease, the termination of Tenant's right to
occupy the Premises or the abandonment, desertion or vacating of the Premises by
Tenant, shall be deemed abandoned by Tenant and may, at the option of Landlord,
be immediately removed from the Premises or such
32
other space by Landlord and stored by Landlord at the full risk and reasonable
and customary costs and expenses of Tenant. Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof. In the event
Tenant does not reclaim any such personal property and pay all costs for any
storage and moving thereof within thirty (30) days after the expiration or
termination of this Lease, the termination of Tenant's right to occupy the
Premises or the abandonment, desertion or vacating of the Premises by Tenant,
Landlord may dispose of such personal property in any way that it deems proper.
If Landlord shall sell any such personal property, it shall be entitled to
retain from the proceeds the amount of any Rent or other expenses due Landlord,
together with the cost of storage and moving and the expense of the sale.
Notwithstanding anything contained herein to the contrary, in addition to the
rights provided herein with respect to any such property, Landlord shall have
the option of exercising any of its other rights or remedies provided in the
Lease or exercising any rights or remedies available to Landlord at law or in
equity.
ARTICLE IX
Section 9.1 Transfers.
---------
(a) Prohibited Transfers. Tenant shall not, by operation of law or
--------------------
otherwise, (a) assign, transfer, mortgage, pledge, hypothecate or otherwise
encumber this Lease, the Premises or any part of or interest in this Lease or
the Premises, (b) grant any concession or license within the Premises, (c)
sublet all or any part of the Premises or any right or privilege appurtenant to
the Premises, or (d) permit any other party to occupy or use all or any part of
the Premises (collectively, a "Transfer"), without the prior written consent of
--------
Landlord, such consent not to be unreasonably withheld or delayed. This
prohibition against a Transfer includes, without limitation, (i) any subletting
or assignment which would otherwise occur by operation of law, merger,
consolidation, reorganization, transfer or other change of Tenant's corporate or
proprietary structure; (ii) an assignment or subletting to or by a receiver or
trustee in any federal or state bankruptcy, insolvency, or other proceedings;
(iii) the sale, assignment or transfer of all or substantially all of the assets
of Tenant, with or without specific assignment of this Lease; (iv) the change in
control in a partnership; or (v) conversion of Tenant to a limited liability
entity. If Tenant converts to a limited liability entity without obtaining the
prior written consent of Landlord: (i) the conversion shall be null and void for
purposes of the Lease, including the determination, of all obligations and
liabilities of Tenant and its partners to Landlord; (ii) all partners of Tenant
immediately prior to its conversion to a limited liability entity shall be fully
liable, jointly and severally, for obligations of Tenant accruing under this
Lease pre-conversion and post-conversion, and all members and other equity
holders in Tenant post-conversion shall be fully liable for all obligations and
liabilities of Tenant accruing under the Lease after the date such members and
other equity holders are admitted to the limited liability entity as if such
person or entity had become a general partner in a partnership; and (iii)
Landlord shall have the option of declaring Tenant in default under this Lease.
If Tenant requests Landlord's consent to any Transfer, then Tenant shall provide
Landlord with a written description of all terms and conditions of the proposed
Transfer, copies of the proposed documentation, and the following information
about the proposed transferee: name and address; reasonably satisfactory
information about its business and business history; its proposed use of the
Premises; a copy of the proposed sublease or assignment agreement; banking,
financial and other credit information; and general references sufficient to
enable Landlord to determine the proposed transferee's
33
creditworthiness and character. It shall be reasonable for Landlord to withhold
its consent to a Transfer if the net worth (net of goodwill) of the proposed
transferee is less than that of Tenant as calculated as the greater of Tenant's
net worth (net of goodwill) either at the time of the Transfer or at the
Commencement Date and if the proposed transferee cannot provide satisfactory
evidence to the Landlord of its financial ability to satisfy all of the
financial obligations of Tenant under this Lease. Landlord's consent to a
Transfer shall not release Tenant from performing its obligations under this
Lease, but rather Tenant's transferee shall assume all of Tenant's obligations
under this Lease in a writing satisfactory to Landlord, and Tenant and its
transferee shall be jointly and severally liable therefor. Landlord's consent to
any Transfer shall not waive Landlord's rights as to any subsequent Transfer.
While the Premises or any part thereof are subject to a Transfer, Landlord may
collect directly from such transferee all rents or other sums relating to the
Premises becoming due to Tenant or Landlord and apply such rents and other sums
against the Rent and any other sums payable hereunder. If the aggregate rental,
bonus or other consideration paid by a transferee for any such space exceeds the
sum of Tenant's Rent to be paid to Landlord for such space during such period,
then one-half (1/2) of such excess shall be paid to Landlord within fifteen (15)
days after such amount is earned by Tenant. Such overage amounts in the case of
a sublease shall be calculated and adjusted (if necessary) on a Lease Year (or
partial Lease Year) basis, and there shall be no cumulative adjustment for the
Term. Landlord shall have the right to audit Tenant's books and records relating
to the Transfer. Tenant authorizes its transferees to make payments of rent and
any other sums due and payable, directly to Landlord upon receipt of notice from
Landlord to do so. Any attempted Transfer by Tenant hereunder shall be void
unless Tenant causes the Letters of Credit to remain in full force and effect,
to the extent otherwise required by this Lease, or delivers to Landlord new
letters of credit containing the same terms and conditions as the Letters of
Credit and reasonably satisfactory to Landlord. Any attempted Transfer by Tenant
in violation of the terms and covenants of this Article IX shall be void and
shall constitute a default by Tenant under this Lease. In the event that Tenant
requests that Landlord consider a sublease or assignment hereunder, Tenant shall
pay (i) Landlord's reasonable fees, not to exceed One Thousand and 00/100
Dollars ($1,000.00) per transaction, incurred in connection with the
consideration of such request, and (ii) all attorneys' fees and costs incurred
by Landlord in connection with the consideration of such request or such
sublease or assignment.
(b) Permitted Transfers. Notwithstanding anything to contrary in this
-------------------
Section 9.1, Tenant shall have the right, upon thirty (30) days prior written
notice to Landlord, to assign this Lease to any firm, person, corporation,
partnership or other entity which (i) controls or is controlled by or is under
common control with Tenant or is deemed an "affiliate" of Tenant in accordance
with the promulgated definition of such term under the rules and regulations of
the Federal Securities and Exchange Commission, or its successor agency, or (ii)
into which or with which Tenant shall merge or consolidate, or which acquires
all or substantially all of the stock or assets of Tenant, provided in each of
the foregoing instances (x) Tenant furnishes to Landlord a fully executed
counterpart of the assignment agreement between Tenant and the assignee promptly
following execution thereof, and (y) the tangible net worth of Tenant, its
assignee and/or surviving entity following a merger or consolidation is equal to
or greater than that of Tenant six (6) months prior to such transaction (a
"Permitted Transfer"). If Tenant remains in existence as a separate legal entity
following consummation of any assignment, Tenant shall not be released from
liability under this Lease. The term "control," as used in this Section 9.1(b)
means, with respect to a corporation, the right to the exercise, directly or
indirectly, of more than
34
50% of the voting rights attributable to the shares of the controlled
corporation, and, with respect to any person or entity that is not a
corporation, the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of the controlled person or
entity. In the event that Tenant enters a Permitted Transfer, the charges
enumerated in Section 9.1(a) shall not be due to Landlord.
Section 9.2 Assignment by Landlord. Landlord shall have the right at any
----------------------
time to sell, transfer or assign, in whole or in part, by operation of law or
otherwise, its rights, benefits, privileges, duties, obligations or interests in
this Lease or in the Premises, the Building, the Land, the Project and all other
property referred to herein, without the prior consent of Tenant, and such sale,
transfer or assignment shall be binding on Tenant. After such sale, transfer or
assignment, and provided such assignee or transferee agrees to honor the terms
and conditions of this Lease, Tenant shall attorn to such purchaser, transferee
or assignee, and Landlord shall be released from all liability and obligations
under this Lease accruing after the effective date of such sale, transfer or
assignment. In such event, Landlord shall release the Letters of Credit and
Tenant shall cause new Letters of Credit to be issued according to the terms of
Section 3.4.
Section 9.3 Limitation of Landlord's Liability. Any provisions of this
----------------------------------
Lease to the contrary notwithstanding, Tenant hereby agrees that no personal,
partnership or corporate liability of any kind or character (including, without
limitation, the payment of any judgment) whatsoever now attaches or at any time
hereafter under any condition shall attach to Landlord or any of Landlord's
Related Parties or any mortgagee for payment of any amounts payable under this
Lease or for the performance of any obligation under this Lease. The exclusive
remedies of Tenant for the failure of Landlord to perform any of its obligations
under this Lease shall be to proceed against the interest of Landlord in and to
the Project. The provision contained in the foregoing sentence is not intended
to, and shall not, limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or Landlord's successors in interest or any
suit or action in connection with enforcement or collection of amounts which may
become owing or payable under or on account of insurance maintained by Landlord.
In no event shall Landlord be liable to Tenant, or any interest of Landlord in
the Project be subject to execution by Tenant, for any indirect, special,
consequential or punitive damages (but not actual damages).
Section 9.4 Exculpation of Landlord. Except as may be caused primarily by
-----------------------
the gross negligence or willful misconduct of Landlord, its agents or employees,
neither Landlord nor the tenants in common, partners, members, owners or
shareholders in or comprising Landlord, nor any officers, directors, agents or
representatives of any thereof shall be liable for (i) injury or damage which
may be sustained by Tenant, its agents, officers, directors, employees, or
invitees, or to their goods, wares, merchandise or property, caused by or
resulting from the state of repair of the Premises or the Project; (ii) injury
or damage from fire, steam, electricity, gas, water or rain which may leak or
flow from or into any part of the Premises; or (iii) the breakage, leakage,
obstruction or other defects of the pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures of the Premises or the Project.
Landlord shall not be liable for damage arising from any act or neglect of any
other tenant of the Project. Landlord shall not be liable for any damages
sustained by Tenant by reason of construction, repair or reconstruction, or
widening of any private, public or quasi-public utility lines, streets, walkways
or thoroughfares; nor, except as may be otherwise provided herein, shall the
Rent or other
35
charges under this Lease be abated during any period that ingress, egress or
traffic may be curtailed, blocked or hampered by reason of such activities.
ARTICLE X
Section 10.1 Subordination. This Lease shall be subject and subordinated
-------------
at all times to (a) all ground or underlying leases now existing or which may
hereinafter be executed affecting the Project, and (b) the lien or liens of all
mortgages, deeds to secure debt and deeds of trust in any amount or amounts
whatsoever now or hereafter placed on the Project or Landlord's interest or
estate therein or on or against such ground or underlying leases and to all
renewals, modifications, consolidations, replacements and extensions thereof and
to each advance made or hereafter to be made thereunder. Upon receipt by Tenant
of a non-disturbance agreement reasonably acceptable to Tenant, Tenant shall
execute and deliver to Landlord, within ten (10) days after receiving written
notice, any instruments, releases or other documents requested by any lessor,
grantee or mortgagee for the purpose of subjecting and subordinating this Lease
to such ground leases, mortgages or deeds of trust. Tenant shall attorn to any
party succeeding to Landlord's interest in the Premises, whether by purchase,
foreclosure, deed in lieu of foreclosure, power of sale, termination of lease or
otherwise, only upon such party's request and at such party's sole discretion,
but not otherwise. Notwithstanding such attornment, Tenant agrees that any such
successor in interest shall not be (a) liable for any act or omission of, or
subject to any rights of setoff, claims or defenses otherwise assertable by
Tenant against, any prior owner of the Project (including without limitation,
Landlord), (b) bound by any rents paid more than one (1) month in advance to any
prior owner, (c) liable for any Security Deposit not paid over to such successor
by Landlord, (d) if such successor is a mortgagee, grantee or ground lessor
whose address has been previously given to Tenant, bound by any modification,
amendment, extension or cancellation of the Lease not consented to in writing by
such mortgagee, grantee or ground lessor, and (e) obligated to cure any defaults
of any prior landlord (including Landlord) which occurred prior to the time such
successor succeeded to the interest of such prior landlord. Tenant shall execute
all such agreements confirming such attornment as such party may reasonably
request. Tenant shall not seek to enforce any remedy it may have for any default
on the part of Landlord without first giving written notice by certified mail,
return receipt requested, specifying the default in reasonable detail, to any
mortgagee, grantee or ground lessor under a lien instrument or lease covering
the Premises whose address has been given to Tenant, and affording such
mortgagee or lessor a reasonable opportunity to perform Landlord's obligations
hereunder. Notwithstanding the generality of the foregoing, any mortgagee,
grantee or ground lessor may at any time subordinate any such deeds of trust,
deeds to secure debt, mortgages, other security instruments or ground leases to
this Lease on such terms and conditions as such mortgagee, grantee, lienholder
or ground lessor may deem appropriate. Tenant hereby irrevocably appoints
Landlord its attorney-in-fact in its name, place and stead to execute any such
non-disturbance, subordination or attornment documents as described herein which
Tenant fails to execute within ten (10) business days after demand therefor.
Section 10.2 Estoppel Certificate or Three-Party Agreement. Tenant agrees
---------------------------------------------
within ten (10) business days following request by Landlord (a) to execute,
acknowledge and deliver to Landlord and any other persons specified by Landlord
in writing, a certificate or three-party agreement among Landlord, Tenant and/or
any third party dealing with Landlord, certifying (i) that this Lease is
unmodified and in full force and effect, or, if modified, stating the nature of
36
such modification (ii) the date to which the Rent and other charges are paid in
advance, if any, (iii) that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, or so specifying such defaults, if
any, as are claimed and/or (iv) any other matters as such third party may
reasonably require in connection with the business dealings of Landlord and/or
such third party and (b) to deliver to Landlord current financial statements of
Tenant, including a balance sheet and a profit and loss statement for at least
two (2) years, all prepared in accordance with generally accepted accounting
principles consistently applied. Tenant's failure to deliver such certificate or
three-party agreement within such ten (10) business day period shall be
conclusive upon Tenant (x) that this Lease is in full force and effect without
modification except as may be represented by Landlord, (y) that to Tenant's
knowledge there are no uncured defaults in Landlord's performance, and (z) that
no Rent has been paid in advance except as set forth in this Lease. Tenant
hereby irrevocably appoints Landlord its attorney-in-fact in its name, place and
stead to execute any such certificate or three-party agreement which Tenant
fails to execute within such ten (10) business day period,
Section 10.3 Notices. Any notice, request, approval, consent or other
-------
communication required or contemplated by this Lease must be in writing, unless
otherwise in this Lease expressly provided, and may be given or be served by
depositing the same in the United States Postal Service post paid and certified
and addressed to the party to be notified, with return receipt requested, or by
delivering the same in person to such party (or, in case of a corporate party,
to an officer of such party), or by express overnight courier service, when
appropriate, addressed to the party to be notified. Notice shall be deemed given
and received on the date of delivery, the date that delivery of such notice
shall be rejected if rejected by the addressee, or the date of first attempted
delivery of such notice, as set forth on the return receipt card, whichever
shall be the first to occur. For purposes of notice the addresses of the parties
shall, until changed as herein provided, be as provided on the first page of
this Lease; provided, that any notices sent to Landlord will only be effective
if copies thereof are simultaneously sent to the following address: Winter
Properties, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President. The parties hereto shall have the right from time to time
to change their respective addresses by giving at least thirty (30) days'
written notice to the other party in the manner set forth in this Section 10.3.
ARTICLE XI
Section 11.1 Right to Relocate Tenant. Intentionally deleted.
------------------------
Section 11.2 Rights and Remedies Cumulative. The rights and remedies of
------------------------------
Landlord under this Lease shall be nonexclusive and each right or remedy shall
be in addition to and cumulative of all other rights and remedies available to
Landlord under this Lease or at law or in equity. Pursuit of any right or remedy
shall not preclude pursuit of any other rights or remedies provided in this
Lease or at law or in equity, nor shall pursuit of any right or remedy
constitute a forfeiture or waiver of any Rent due to Landlord or of any damages
accruing to Landlord by reason of the violation of any of the terms or this
Lease.
Section 11.3 Legal Interpretation. 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 Project is located and the
United States. The determination that one or more
37
provisions of this Lease is invalid, void, illegal or unenforceable shall not
affect or invalidate any other provision of this Lease, and this Lease shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained in this Lease, and, so far as is reasonable and possible, effect shall
be given to the intent manifested by the portion held invalid or inoperative,
All obligations of either party hereunder not fully performed as of the
expiration or termination of the Term of this Lease shall survive the expiration
or termination of the Term of this Lease and shall be fully enforceable in
accordance with those provisions pertaining thereto. Article and section titles
and captions appearing in this Lease are for convenient reference only and shall
not be used to interpret or limit the meaning of any provision of this Lease. No
custom or practice which may evolve between the parties in the administration of
the terms of this Lease shall waive or diminish the right of Landlord to insist
upon the performance by Tenant in strict accordance with the terms of this
Lease. This Lease is for the sole benefit of Landlord and Tenant, and, without
the express written consent thereto, no third party shall be deemed a third
party beneficiary hereof. Tenant agrees that this Lease supersedes and cancels
any and all previous statements, negotiations, arrangements, brochures,
agreements and understandings, if any, between Landlord and Tenant with respect
to the subject matter of this Lease or the Premises and that this Lease,
including written extrinsic documents referred to herein, is the entire
agreement of the parties, and that there are no representations, understandings,
stipulations, agreements, warranties or promises (express or implied, oral or
written) between Landlord and Tenant with respect to the subject matter of this
Lease or the Premises. It is likewise an instrument in writing signed by both
Landlord and Tenant. The terms and provisions of this Lease shall not be
construed against or in favor of a party hereto merely because such party is the
"Landlord" or the "Tenant" hereunder or because such party or its counsel is the
-------- ------
drafter of this Lease. All references to days in this Lease and any Exhibits or
Addenda hereto mean calendar days, not working or business days, unless
otherwise stated.
Section 11.4 Tenant's Authority. Both Tenant and the person executing this
------------------
Lease on behalf of Tenant warrant and represent unto Landlord that (a) Tenant is
a duly organized and validly existing legal entity, in good standing and
qualified to do business in the state in which the Project is located, with no
proceedings pending or contemplated for its dissolution or reorganization,
voluntary or involuntary, (b) Tenant has all right, power and authority to
execute, deliver and perform this Lease, (c) the person executing this Lease on
behalf of Tenant is authorized to do so, (d) upon execution of this Lease by
Tenant, this Lease shall constitute a valid and legally binding obligation of
Tenant, and (e) upon request of Landlord, such person will deliver to Landlord
satisfactory evidence of the matters set forth in this Section.
Section 11.5 No Brokers. Landlord and Tenant warrant and represent to the
----------
other that it has not dealt with any real estate broker and/or salesperson other
than ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ of Georgia, Inc., and Equis Corporation in connection
with the negotiation or execution of this Lease and no such broker or
salesperson has been involved in connection with this Lease, and each party
agrees to defend, indemnify and hold harmless the other party from and against
any and all costs, expenses, attorneys' fees or liability for any compensation,
commission and charges claimed by any real estate broker and/or salesperson
(other than the aforesaid brokers) due to acts of such party or such party's
representatives.
Section 11.6 Consents by Landlord. In all circumstances under this Lease
--------------------
where the prior consent or permission of Landlord is required before Tenant is
authorized to take any
38
particular type of action, such consent must be in writing and the matter of
whether to grant such consent or permission shall be within the sole and
exclusive judgment and discretion of Landlord, and it shall not constitute any
nature of breach by Landlord under this Lease or any defense to the performance
of any covenant, duty or obligation of Tenant under this Lease that Landlord
delayed or withheld the granting of such consent or permission, whether or not
the delay or withholding of such consent or permission was prudent or reasonable
or based on good cause.
With respect to any provision of this Lease which provides that Tenant
shall obtain Landlord's prior consent or approval, Landlord may withhold such
consent or approval for any reason at its sole discretion, unless the provision
specifically states that the consent or approval will not be unreasonably
withheld,
With respect to any provision of this Lease which provides that Landlord
shall not unreasonably withhold or unreasonably delay any consent or any
approval, Tenant, in no event, shall be entitled to make nor shall Tenant make
any claim for, and Tenant hereby waives any claim for money damages (other than
actual damages); nor shall Tenant claim any money damages by way of setoff,
counterclaim or defense, based upon any claim or assertion by Tenant that
Landlord has unreasonably withheld or unreasonably delayed any consent or
approval; but Tenant's sole remedy (other than a separate action for actual
monetary damages against Landlord) shall be an action or proceeding to enforce
any such provision, or for specific performance, injunction or declaratory
judgment.
Section 11.7 Joint and Several Liability. If there is more than one
---------------------------
Tenant, then the obligations hereunder imposed upon Tenant shall be joint and
several. If there is a Guarantor of Tenant's obligations hereunder, then the
obligations hereunder imposed upon Tenant shall be the joint and several
obligations of Tenant and such Guarantor, and Landlord need not first proceed
against Tenant before proceeding against such Guarantor nor shall any such
Guarantor be released from its Guaranty for any reason whatsoever.
Section 11.8 No Estate in Tenant. The words "Landlord" and "Tenant" as
-------------------
used herein shall include the plural as well as the singular. This Lease shall
not result in the creation of an estate for years in Tenant. Accordingly, Tenant
shall have only a usufruct not subject to levy or sale. Tenant shall have no
rights of assignment, subletting, sale, or transfer other than as set forth
herein and Tenant hereby waives any such rights existing pursuant to the laws of
the State of Georgia or otherwise. No estate shall pass out of Landlord to
Tenant hereunder, and Tenant shall not be entitled to any award of whatsoever
nature based on this Lease and/or Tenant's right to occupy the Premises
hereunder.
Section 11.9 Independent Covenants. The obligation of Tenant to pay Rent
---------------------
and other monetary obligations provided to be paid by Tenant under this Lease
and the obligation of Tenant to perform Tenant's other covenants and duties
under this Lease constitute independent, unconditional obligations of Tenant to
be performed at all times provided for under this Lease, save and except only
when an abatement thereof or reduction therein is expressly provided for in this
Lease and not otherwise, and Tenant acknowledges and agrees that in no event
shall such obligations, covenants and duties of Tenant under this Lease be
dependent upon the condition of the Premises or the Project, or the performance
by Landlord of its obligations hereunder.
39
Section 11.10 Attorneys' Fees and Other Expenses. In the event either
----------------------------------
party hereto defaults in the faithful performance or observance of any of the
terms, covenants, provisions, agreements or conditions contained in this Lease,
the party in default shall be liable for and shall pay to the nondefaulting
party all actual and customary expenses incurred by such party in enforcing any
of its remedies for any such default, and if the nondefaulting party places the
enforcement of all or any part of this Lease in the hands of an attorney, the
party in default agrees to pay the nondefaulting party's reasonable attorneys'
fees in connection therewith.
Section 11.11 Recording. Neither Landlord nor Tenant shall record this
---------
Lease, but a short-form memorandum hereof may be recorded at the request of
Landlord.
Section 11.12 Disclaimer; Waiver of Jury Trial. LANDLORD AND TENANT
--------------------------------
EXPRESSLY ACKNOWLEDGE AND AGREE, AS A MATERIAL PART OF THE CONSIDERATION FOR
LANDLORDS ENTERING INTO THIS LEASE WITH TENANT, THAT, EXCEPT AS OTHERWISE SET
FORTH IN THIS LEASE, LANDLORD HAS MADE NO WARRANTIES TO TENANT AS TO THE USE OR
CONDITION OF THE PREMISES OR THE PROJECT, EITHER EXPRESS OR IMPLIED, AND
LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES OR
THE PROJECT ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE OR ANY OTHER
WARRANTY (EXPRESS OR IMPLIED) REGARDING THE PREMISES OR THE PROJECT, EXCEPT AS
EXPRESSLY SET FORTH IN THIS, LEASE, LANDLORD AND TENANT EXPRESSLY AGREE THAT
THERE ARE NO, AND SHALL NOT BE ANY, IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER KIND ARISING OUT OF
THIS LEASE, ALL SUCH OTHER EXPRESS OR IMPLIED WARRANTIES IN CONNECTION HEREWITH
BEING EXPRESSLY DISCLAIMED AND WAIVED.
LANDLORD AND TENANT WAIVE THE 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. TENANT FURTHER ACKNOWLEDGES HAVING READ AND
UNDERSTOOD THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION AND AS
EVIDENCE OF SAME HAS EXECUTED THIS LEASE.
Section 11.13 No Access to Roof. Subject to Tenant's right to use the Roof
-----------------
Space, Tenant shall have no right of access to the roof of the Premises or the
Building. Notwithstanding the foregoing, Tenant shall have the right to access
the roof for the sole purposes of installing, maintaining, repairing or
replacing Tenant's supplemental generator or other equipment placed upon the
roof by Tenant and which equipment has been approved by Landlord pursuant to the
40
Plans (as defined in Exhibit "E"); provided, however, Tenant shall repair any
roof penetrations caused by Tenant or those within Tenant's control and provide
access protection measures for the roof in accordance with the requirements or
recommendations of the roofing manufacture and good roofing practices. In the
event that an act or omission of Tenant, it agents, contractors or employees,
causes the Landlord's roof warranty to be voided or otherwise impaired, Tenant
shall cause the roof warranty to be reinstated or otherwise restored to the same
condition as it existed prior to the Tenant's acts or omissions.
Section 11.14 Parking. Tenant's occupancy of the Premises shall include
-------
the non-exclusive use of 71 parking spaces which shall be used in common with
other tenants, invitees and visitors of the Project. The location of the parking
spaces are shown on Exhibit "G" attached hereto as Parking Lots 1, 2, 3, and 4.
-----------
As of the date of this Lease, the parking spaces shall initially consist of
twenty-nine (29) spaces on the west side of Spring Street in Parking Lot 1,
twenty-three (23) spaces on the east side of Spring Street in Parking Lot 2, and
nineteen (19) spaces in Parking Lots 3 and/or 4 as designated by Landlord.
Tenant agrees not to overburden the parking facilities and agrees to cooperate
with Landlord in monitoring the parking areas to insure that Tenant and its
invitees and visitors are not using more than the number of spaces to which
Tenant is entitled pursuant to this Lease. Landlord reserves the right in its
reasonable discretion from time to time, but not more than five (5) times during
the initial five (5) year Term of this Lease to determine whether the parking
facilities are becoming overburdened and to allocate and assign parking spaces
among Tenant and other tenants, and to reconfigure the parking area (including
reallocation of spaces between the east and west sides of Spring Street) and
modify the existing ingress to and egress from the parking area as Landlord
shall deem appropriate, and to designate the location of the parking spaces in
any location within 1500 feet of the Project, including, at Landlord's sole
discretion, within a parking structure. Tenant shall pay to Landlord as
Additional Rent simultaneously with the payment of Base Rent a charge for each
parking space (the "Parking Charge"). During the first Lease Year, the Parking
Charge shall be $50.00 per month per parking space. Beginning with the second
Lease Year, and on the first day of each subsequent Lease Year, the Parking
Charge shall be adjusted by Landlord to the then current Market Rate. If the
spaces designated by Landlord for Tenant are located within a parking structure,
the Market Rate for parking structures shall apply. Notwithstanding the
foregoing, if an employee, agent or contractor of Tenant cannot find a parking
space in one of the parking lots or parking structure, as appropriate, (not
merely a convenient or desirable parking space), then Tenant shall notify
Landlord and permit Landlord to assist Tenant in locating an unoccupied parking
space. If there are no unoccupied parking spaces available for Tenant's use as
provided herein (a "Parking Space Incident"), then Landlord and Tenant shall
maintain a list specifying the time and date for each Parking Space Incident for
each calendar month. At the end of each calendar month, the number of Parking
Space Incidents shall be calculated and Tenant shall be refunded an amount of
money equal to the product of (i) the Parking Charge and (ii) the whole number
which is the difference of (a) the total number of Parking Space Incidents and
(b) three (3) [Example: Parking Charge is $50 and number of Parking Space
Incidents is 4--50 * 1 (which is the whole number difference of 4/3)= $50].
Tenant shall have the right, upon thirty (30) days prior written notice to
Landlord, to reduce the total number of parking spaces allocated to Tenant as
provided herein. If Tenant elects to reduce the total number of parking spaces
allocated to Tenant, then, upon such election, Landlord shall have no obligation
to restore the total number of parking spaces allocated to Tenant to the number
of spaces allocated to Tenant prior to Tenant's election.
41
Section 11.15 No Accord and Satisfaction. No payment by Tenant or receipt
--------------------------
by Landlord of a lesser amount than the Rent and other sums due hereunder shall
be deemed to be other than on account of the earliest Rent or other sums due,
nor shall any endorsement or statement on any check or 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 of such
Rent or other sum and to pursue any other remedy provided in this Lease.
Section 11.16 Acceptance. The submission of this Lease by Landlord does
----------
not constitute an offer by Landlord or other option for, or reservation of, the
Premises, and this Lease shall only become effective and binding upon Landlord,
upon full execution hereof by Landlord and delivery of a signed copy to Tenant.
Section 11.17 Waiver of Counterclaim. Tenant hereby waives the right to
----------------------
interpose any counterclaim of whatever description in any summary proceeding.
Section 11.18 Time Is of the Essence. Time is of the essence of this
----------------------
Lease. Unless specifically provided otherwise, all references to terms of days
or months shall be construed as references to calendar days or calendar months,
respectively.
Section 11.19 Counterparts. This Lease may be executed in any number of
------------
counterparts, each of which when so executed and delivered shall be an original,
but such counterparts shall together constitute one and the same instrument.
[Signatures contained on following page.]
42
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed by
their respective duly authorized officers as of the day and year first above
written.
LANDLORD:
SPRING STREET, L.L.C.,
a Georgia limited liability company
Winter Properties, Inc.,
By: its Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice-President
[CORPORATE SEAL]
TENANT:
NAVIANT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
[CORPORATE SEAL]
43
EXHIBIT "A"
-----------
LEGAL DESCRIPTION OF LAND
-------------------------
44
EXHIBIT "A-1"
-------------
DEPICTION OF THE PROJECT
------------------------
45
EXHIBIT "B"
-----------
FLOOR PLAN OF PREMISES
----------------------
[To be provided]
46
EXHIBIT "C"
-----------
SPECIAL STIPULATIONS
--------------------
These Special Stipulations are hereby incorporated into this Lease and in
the event that they conflict with any provisions of this Lease, these Special
Stipulations shall control.
47
EXHIBIT "D"
-----------
COMMENCEMENT DATE AGREEMENT
---------------------------
This Commencement Date Agreement (this "Agreement") is made and entered
---------
into this _____ day of __________, ______, by and between SPRING STREET, L.L.C.,
a Georgia limited liability company ("Landlord") and NAVIANT, INC., a
--------
_____________ company ("Tenant")
------
WHEREAS, Landlord and Tenant entered into that certain Lease (the "Lease")
dated _________ 19 ___, with respect to certain premises located at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, as such demised premises are more particularly
described in the Lease.
WHEREAS, this Agreement is executed by Landlord and Tenant to confirm the
Commencement Date and the Expiration Date, as those terms are defined in the
Lease;
NOW, THEREFORE, for and in consideration of the demised premises and the
mutual covenants expressed in the Lease, it is hereby agreed by Landlord and
Tenant as follows:
1. The Premises were substantially complete and the Base Rent and
Additional Rent (as such terms are defined in the Lease) commenced on _________,
_____ (the "Commencement Date") and will expire on __________, ______ (the
"Expiration Date").
2. This Agreement shall not be deemed or construed to alter or amend
the Lease in any manner.
48
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to be
executed as of the day and year first above written.
LANDLORD:
SPRING STREET, L.L.C.,
a Georgia limited liability company
Winter Properties, Inc.,
By: its Managing Member
By: _________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice-President
[CORPORATE SEAL]
TENANT:
NAVIANT, INC.
By: ______________________________
Name: ________________________
Its: ________________________
[CORPORATE SEAL]
49
EXHIBIT "E"
-----------
WORK LETTER AGREEMENT
---------------------
The provisions of this Exhibit "E" shall apply to any and all alterations or
-----------
physical additions to the Premises when such alterations or physical additions
are undertaken prior to the Commencement Date. Capitalized terms used herein
that are not defined herein shall have the same meaning given to such terms in
the Lease.
1. Certain Definitions.
-------------------
1.1. "Building Standard" shall mean the quantity and quality of
-----------------
materials, finishing and workmanship specified by Landlord from time to time as
standard for the Building.
1.2. "Existing Improvement" shall mean all leasehold improvements
--------------------
existing in the Premises on the date of the Lease.
1.3. "Landlord Work" shall mean the items of construction which
-------------
Landlord shall have completed prior to the commencement of Tenant Work and shall
consist of the following items:
1.3.1 Exterior walls "sheet-rocked";
1.3.2 The floor will be stripped of old covering;
1.3.3 Toilet rooms will be renovated and a handicap-accessible
facility will be provided; and
1.3.4 Each floor will have: (i) an electrical distribution panel
with capacity to serve power and lighting branch circuits for new Leasehold
Improvements; (ii) a single air handling unit for heating and cooling and trunk
ducts for six (6) control zones, with any branch ducts and diffusers to be
installed constituting Tenant Work; (iii) fire protection sprinkler mains and
heads, any adjustment in the location of which shall be an element of Tenant
Work.
1.3.5 Completed elevator lobbies on street level and Tenant's
floors.
1.4. "Leasehold Improvements" shall mean the aggregate of the Existing
----------------------
Improvements and the Tenant Work.
1.5. "Substantial Completion" shall mean the earlier of (i) the day on
----------------------
which the Tenant Work has been completed substantially in accordance with the
Plans so that Tenant may receive the beneficial use of the Premises (i.e., when
Tenant may use the Premises for its intended purpose), subject to a punch-list
of non-material items that can be completed within thirty (30) days, all as
determined by Landlord in its reasonable judgment, or (ii) the day on which
Tenant first occupies the Premises.
2
1.6. "Tenant's Work" all alterations and physical improvements, including,
-------------
without limitation, improvements, equipment or fixtures, within the Premises,
other than Landlord's Work.
2. Plans and Specifications.
------------------------
2.1. Landlord's Work. All of Landlord's Work has been completed. The
---------------
Premises are ready for the commencement of Tenant's Work. Any modifications to
Landlord's Work requested by Tenant shall be subject to Landlord's approval, not
to be unreasonably withheld, conditioned or delayed, and shall be at Tenant's
expense. Landlord warrants the structural integrity of the Building.
2.2. Tenant's Work. Tenant, at its expense, shall construct, furnish or
-------------
install all of Tenant's Work. Tenant's Work shall be in conformity with plans
submitted to and approved by Landlord and shall be performed in accordance with
the following provisions:
2.2.1 At or prior to the execution of this Lease by Landlord,
Landlord shall furnish to Tenant a lease outline drawing (the "Lease Outline
Drawing") showing the area of the Premises and the design criteria for the
Building.
2.2.2 Tenant shall cause all plans, drawings and specifications for
Tenant's Work, whether preliminary or final, to be prepared by a licensed
architect and/or engineer licensed in the State of Georgia and, as appropriate,
duly licensed mechanical, electrical and structural engineers. Tenant's drawings
shall include but not be limited to the following: (1) Architectural design of
the space: floor plans and elevations including sections and complete fixturing
information, material selections and finishes; (2) Color and material sample
board, which board is available for review at Tenant's current place of
business; (3) Mechanical system: load calculations, basic equipment to be used
and its position and capacity, duct distribution system and diffuser locations;
(4) Electrical system: load calculations, floor and reflected ceiling plans
showing outlets, type of lighting fixtures, other electrical equipment
contemplated and location, capacity and design of panels; and (5) HVAC control
system shall be designed to conform to Building Standard controls as determined
by Landlord. It is Tenant's obligation to determine and to report to Landlord,
no later than fourteen (14) days following the date Landlord tenders possession
of the Premises to Tenant, any inaccuracy in the Lease Outline Drawing.
2.2.3 Within thirty (30) days following the date of execution of
this Lease by Landlord, Tenant shall prepare and Submit to Landlord for its
approval, as to design, two (2) sets (at least one (1) of which shall be in
reproducible format) of fully dimensioned scale preliminary drawings of the
Premises and Tenant's proposed work therein.
2.2.4 Within seven (7) days after receipt of Tenant's preliminary
drawings, Landlord shall return one (1) set of prints thereof with Landlord's
approval and/or suggested modifications noted thereon. If Landlord has approved
Tenant's preliminary drawings subject to modifications, such modifications shall
be deemed to be acceptable to and approved by Tenant unless Tenant shall have
prepared and resubmitted revised drawings to Landlord within seven (7) days of
Tenant's receipt of such modifications from Landlord. If Landlord has suggested
modifications without approving Tenant's preliminary drawings, Tenant shall
prepare and
3
resubmit revised drawings within fourteen (14) days for consideration by
Landlord. All revised drawings shall be submitted to Landlord within fourteen
(14) days following Landlord's return to Tenant of the drawings originally
submitted, and Landlord shall approve or disapprove such revised plans within
seven (7) days following receipt of the same.
2.2.5 Following approval of Tenant's preliminary drawings by
Landlord, Tenant shall proceed diligently to prepare final plans and
specifications for Tenant's Work in conformity with such approved preliminary
drawings, and shall furnish two (2) copies (at least one (1) of which shall be
in reproducible format) of such final plans and specifications to Landlord for
its determination as to conformity with approved preliminary drawings and for
its approval as to any matters not shown in the approved preliminary drawings.
Landlord shall approve or disapprove such final plans and specifications within
seven (7) days following receipt of the same, and in the event of disapproval
Tenant shall promptly revise and resubmit such final plans and specifications as
required by the Landlord.
2.2.6 After approval of final plans and specifications by Landlord
(the "Plans"), and tender of possession of the Premises by Landlord to Tenant,
Tenant shall proceed forthwith to commence the performance of Tenant's Work and
shall diligently pursue it to completion. Tenant's contractors and
subcontractors shall be acceptable to and approved by Landlord in writing, such
approval not to be unreasonably withheld, conditioned or delayed, and shall be
subject to administrative supervision by Landlord in their use of the Building
and their relationship with Landlord's contractors or contractors of other
tenants in the Building, as more particularly set forth in Section 9 herein.
Tenant and its contractors and subcontractors shall agree in writing to conform
to whatever reasonable guidelines are established by Landlord and provided from
time to time to Tenant. Tenant and its contractors and subcontractors shall
participate in a pre-construction onsite meeting prior to commencement of
Tenant's Work, and shall employ workers and means to insure so far as may be
possible the progress of Tenant's Work without interruption on account of
strikes, work stoppage or similar causes of delay. Tenant's entry into the
Premises prior to the Commencement Date for the performance of Tenant's Work
shall be subject to all of the terms and conditions of this Lease except the
payment of Rent. Any damage to the Building caused by Tenant or its contractors
or subcontractors in connection with the performance of Tenant's Work shall be
repaired at Tenant's expense.
2.2.7 Any changes in Tenant's Work from the Plans shall be subject
to Landlord's approval, such approval not to be unreasonably withheld,
conditioned or delayed, and Tenant shall pay all actual and reasonable costs
incurred by Landlord in reviewing any requested change.
2.2.8 Upon completion of Tenant's Work, Tenant shall furnish to
Landlord for its permanent files two (2) sets (at least one (1) of which shall
be in reproducible format) of "as built" drawings showing Tenant's Work as
constructed or installed in the Premises.
3. Construction of Tenant's Work. Tenant shall, at Tenant's expense, procure
-----------------------------
all permits and licenses and make all contracts necessary for the construction
of Tenant's Work. Tenant's Work shall be done only by a contractor approved in
writing by Landlord prior to the commencement of Tenant's Work. All Tenant's
Work shall conform to all applicable statutes,
4
ordinances, regulations, and codes and shall be in accordance and compliance
with the Plans. Tenant contracts, if executed between Tenant and Tenant's
contractor, must make reference to the fact that Landlord's construction manager
has full authority to enforce the Construction Rules and Regulations attached
hereto and previously provided to Tenant.
4. Special Provisions Applicable to Tenant's Work. Tenant's Work shall be
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performed in a first-class and workerlike manner and all improvements
constructed pursuant thereto shall be in good and usable condition at the date
of completion. Tenant and Tenant's contractors are limited to performing their
work, including and storage for construction purposes, within the Premises only.
Tenant shall be responsible for daily removal from the Premises and the Building
of all trash, rubbish, and surplus materials resulting from any work being
performed in the Premises. Tenant shall exercise extreme care and diligence in
removing such trash, rubbish, or surplus materials from the Premises to avoid
littering, marring, or damaging the parking areas, the Common Areas or any of
the other tenants in the Building. If any such trash, rubbish, or surplus
materials are not promptly removed from the Building in accordance with the
provisions hereof, or if any of the parking areas or Common Areas are littered,
marred, or damaged, Landlord may cause same to be removed or repaired, as the
case may be, at Tenant's cost and expense. In the event Landlord incurs any
costs or expenses in performing the above, Tenant shall pay the Landlord the
actual and reasonable amount of any such cost and expenses within thirty (30)
days after receipt of an invoice. Tenant shall require its agents, employees,
contractors, or subcontractors to cause all materials or supplies to be
delivered to the Premises in a manner that causes the least disruption to the
other tenants in the Building and as stipulated in the Construction Rules and
Regulations.
5. Building Standard Material. Tenant agrees to use, as a part of the Tenant
--------------------------
Work, Building Standard materials including, but not limited to, Building
Standard corridor and interior doors, hardware, lights or other materials unless
other corridor or interior doors, hardware or lights are requested by Tenant and
approved by Landlord.
6. Structural Work. Notwithstanding anything to the contrary contained in
---------------
this Lease, if any work required or proposed to be performed by Tenant shall be
structural or shall affect the structural integrity of the Building or any
portion thereof, Landlord shall have the right, but not the obligation, to do
such work for Tenant and Tenant shall reimburse Landlord for all of Landlord's
costs and expenses in connection therewith plus an amount equal to ten (10%)
percent thereof for overhead plus an additional amount equal to six (6%) percent
of such total costs and overhead for profit.
7. Building System. Under no circumstances whatsoever will Tenant ever alter
---------------
or modify or in any manner disturb any system or installation of the Building,
including, but not limited to, plumbing, electrical, heating, ventilating, air
conditioning, fire protection, fire alert, elevator, building maintenance, and
structural systems, or anything located within the central core of the Building
without Landlord's prior written approval.
8. Completion of Tenant's Work. Tenant shall complete Tenant's Work and
---------------------------
Tenant shall open for business on or before the Commencement Date. If: (i)
Tenant fails to complete Tenant's Work on or before the Commencement Date; (ii)
notwithstanding Tenant's failure to complete Tenant's Work on or before the
Commencement Date, Landlord nevertheless permits
5
Tenant to open, based on Tenant's promise to complete, within a specific period
of time directed by Landlord, of punchlist items relating to Tenant's Work
submitted by Landlord and Tenant fails timely to complete such items; and/or
(iii) Tenant fails to open for business as required by the preceding sentence
and by this Lease, then, Landlord shall have the right to seek all rights and
remedies available to Landlord under the Lease, in law or at equity.
9. Construction Management Fee. If the Winter Construction Company ("Winter")
---------------------------
constructs Tenant's Work, then Landlord shall not charge the Construction
Management Fee. If a general contractor other than Winter is chosen, then
Landlord shall charge Tenant a Construction Management Fee of two percent (2%)
of the cost of Tenant's Work.
10. Insurance. All Tenant's contractors shall maintain Worker's Compensation
---------
and Public Liability Insurance, Property Damage Insurance and such other
insurance in force and effect as may be reasonably requested by Landlord or as
required by applicable law.
11. Indemnity. Tenant also agrees to indemnify and hold Landlord harmless from
---------
and against any claims, actions, losses, costs, fees (including attorneys' fees)
or damages resulting from the intentional or negligent acts or omissions of
Tenant, its agents, employees, contractors, or subcontractors in the performance
of Tenant's Work.
12. Lien Waivers. Upon completion of Tenant's Work in accordance with the
------------
Plans, Tenant shall give Landlord written notice thereof and shall
simultaneously with such written notice furnish Landlord with the following
documents all in a form and substance acceptable to Landlord:
12.1. A detailed breakdown of the cost of Tenant's Work;
12.2. A certificate of occupancy issued by the appropriate governmental
authority, if applicable;
12.3. A valid and effective "final contractor's affidavit" from the general
contractor, and final lien waivers from all contractors, subcontractors,
materialmen, suppliers, architects, engineers, and all other persons performing
work or supplying materials and/or services on or about the Premises in
connection with Tenant's Work stating that the cost of all such labor, material,
supplies, and services incorporated in Tenant's Work has been paid in full and
waiving all liens and claims-arising as a result of such work; and
12.4. An estoppel certificate from Tenant.
13. Monetary Matters.
----------------
13.1. Landlord's Design Contribution. Landlord will contribute One Dollar
------------------------------
and 50/100 ($1.50) per square foot of rentable area of the Premises ("Landlord's
----------
Design Contribution") toward the cost of preparation of the space plan and the
-------------------
Plans (but Landlord's Design Contribution shall never exceed the total cost of
such preparation). Any and all costs of such preparation in excess of Landlord's
Design Contribution shall be borne by Tenant. The foregoing notwithstanding,
Landlord shall not be required to contribute any sums toward such costs unless
simultaneously therewith Tenant pays its portion of such costs (based on
Landlord's
6
estimate thereof), if any. If the actual costs are more than Landlord's
estimate, the difference shall be paid by Tenant. If the actual costs are less
than Landlord's estimate, then Tenant's portion of such difference shall be
refunded to Tenant.
13.2. Tenant Improvement Allowance.
----------------------------
13.2.1 Landlord shall pay to Tenant a Tenant Improvement Allowance
(the "Allowance") of Twenty-one and No/100 Dollars ($21.00) per square foot, or
Four Hundred Ninety-Eight Thousand Nine Hundred Sixty and No/100 Dollars
($498,960.00), based on 23,760 square feet in the Premises toward the
construction of Tenant's Work. As an additional incentive to Tenant for entering
into this Lease, Landlord shall pay to Tenant an additional sum of Ten Thousand
and No/100 Dollars ($10,000.00), which amount shall be included in the
Allowance.
13.2.2 Landlord agrees to make monthly partial disbursements of the
Allowance based upon the percentage of Tenant Work completed, less a retainage
amount of ten (10) percent. At Substantial Completion, Landlord shall disburse
all of the Allowance, less reasonable amounts for the completion of punchlist
items and a retainage amount of five (5) percent. Landlord agrees to disburse
the remaining Allowance to Tenant on or before the latest of (a) Tenant's having
paid Base Rent for the first month of the Lease; (b) Tenant's having opened for
business in the Premises after having received a certificate of occupancy; (c)
Tenant's completion of any punch list items relating to Tenant's Work submitted
by Landlord; and (d) Tenant's submission to Landlord of all lien waivers and
paid receipts from all of Tenant's contractors, subcontractors, materialmen and
other suppliers in connection with Tenant's Work.
14. Default. The failure by Tenant to comply with the provisions of this
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Exhibit "E" shall constitute a default by Tenant Landlord the Lease and Landlord
-----------
shall have the benefit of all remedies provided for in the Lease. Tenant hereby
agrees that in case of a default or event of default under Paragraph 8 of the
Lease, Landlord shall be entitled to recover from Tenant, as additional damages
incurred as the result of such default, an amount equal to the unamortized
(straight line basis over 60 months) amount of the Allowance.
15. Non-Interference with Other Tenants. The performance of the Tenant's Work
-----------------------------------
shall not affect the quiet enjoyment of other tenants in the Building and shall
not disrupt or interfere with the business activities being conducted therein.
16. Roof. Tenant shall not penetrate, puncture, or otherwise go upon or work
----
upon any portion of the roof, including, but not limited to that portion of the
roof over the Premises without obtaining the prior written consent of Landlord.
The approval by Landlord of the Plans does not constitute such prior written
consent unless otherwise expressly provided in the Plans. In the event Landlord
shall grant its consent to Tenant as provided above, Tenant shall, at Tenant's
sole cost and expense, be responsible for assuring that upon completion of the
installation of any items upon the roof or other work thereon that all necessary
flashing, patching, and other repair that may, in the sole discretion of
Landlord, be necessary to return the roof to a waterproof condition is performed
in a first-class and workerlike manner.
17. Parking. Tenant and those performing Tenant's Work shall park in areas
-------
designated by Landlord.
7
18. Construction Regulations. Tenant and those performing Tenant's Work shall
------------------------
comply with all construction rules and regulations promulgated by Landlord from
time to time.
19. Construction Work Hours. Tenant's contractor may perform work on the
-----------------------
Demised Premises at any time of the day. Tenant's contractor shall be mindful
of disrupting other Tenant's in the building and shall schedule work that causes
structurally borne noises at such times when such work is permitted by the
Construction Rules and Regulations.
20. Landlord Cooperation. Landlord agrees to cooperate fully with Tenant
--------------------
and/or Tenant's project manager, general contractor and designers in the
completion of Tenant's Work. Landlord acknowledges that Tenant has committed to
an aggressive project schedule and agrees to assist (at no additional cost to
Landlord) in the achievement of the schedule.
8
EXHIBIT "F"
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PROJECT RULES AND REGULATIONS
-----------------------------
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar areas
shall not be used for the disposal of trash, be obstructed by Tenant or be used
by Tenant for any purpose other than ingress and egress to and from the Premises
and for going from one part of the Building to another part of the Building.
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 all such fixtures or
appliances from misuse by Tenant shall be paid by Tenant and Landlord shall not
in any case be responsible therefor.
3. Signs, advertisements, or notices visible in or from public corridors or
from outside the Building shall be subject to Landlord's prior written approval,
such approval not to be unreasonably withheld, delayed or conditioned. No
curtains or other window treatments shall be placed between the glass and the
Building standard window treatments.
4. With respect to work being performed by Tenant in the Premises, Tenant
shall refer all contractors, contractors' representatives, and installation
technicians rendering any service to Tenant to Landlord for Landlord's
supervision and approval before the performance of any contractual services.
This provision shall apply to all work performed in the Building, including, but
not limited to, installations of telephones, telegraph equipment, electrical
devices and attachments, and any and all installations of every nature affecting
floors, walls, woodwork, trim, windows, ceilings, equipment, and other physical
portions of the Building.
5. Movement in or out of the Building of furniture, office equipment, safes
and other heavy equipment, or the dispatch or receipt by Tenant of any bulky
material or merchandise, or materials which require use of elevators or
stairways or movement through the Building entrances or lobby, shall be
restricted to such hours as Landlord reasonably designates. All such movement
shall be under the supervision of Landlord and in the manner agreed between
Tenant and Landlord by prearrangement before performance. Such prearrangement,
to be initiated by Tenant, will include determination by Landlord as to the
time, method, and routing of such movement and as to limitations for safety or
other concerns. Tenant assumes all risks of damage to articles moved and injury
to persons engaged or not engaged in such movement. Tenant shall be liable to
personnel of Landlord damaged or injured as a result of acts in connection with
carrying out this service for Tenant, and, except for the grossly negligent acts
or omissions of Landlord, its agents, contractors or employees, Landlord shall
not be liable for the acts of any person engaged in, or any damage or loss to
any property or persons resulting from any act in connection with, such service
performed for Tenant.
6. Building management shall have the right and authority to prescribe the
maximum weight and position of safes and other heavy equipment which may
overstress any portion of a floor. All damages done to the Building or the
Project by taking in or putting out any property of Tenant, or done by Tenant's
property while in the Building, shall be repaired at the expense of Tenant.
9
7. Corridor doors, when not in use, shall be kept closed.
8. Tenant space visible from a public area must be kept neat and clean.
9. Should Tenant require telegraphic, telephonic, annunciator, or other
communication services, Landlord will direct the electricians as to where and
how wires are to be introduced and placed, and none shall be introduced or
placed except as Landlord shall direct. Electric current shall not be used for
power or heating without Landlord's prior written permission, which consent
shall not be unreasonably withheld, delayed or conditioned.
10. No animals shall be brought into or kept in, on, or about the Building or
the Project.
11. All routine deliveries to the Premises shall be made between the hours of
8:00 a.m. and 5:00 p.m. weekdays. Passenger elevators are to be used only for
the movement of persons, unless an exception is approved by the Building
management office.
12. Tenant shall not tamper with or attempt to adjust temperature control
thermostats in the Premises. Landlord shall adjust thermostats as required to
maintain the Building standard temperature. Landlord requests that all window
blinds remain down and tilted at a 45 degree angle toward the street to help
maintain comfortable room temperatures and conserve energy.
13. Tenant will comply with all security procedures during business hours and
after hours and on weekends.
14. Tenants are requested to lock all office doors leading to corridors and to
turn out all lights at the close of their working day.
15. All requests for overtime air conditioning or heating must be submitted in
writing to the Building management office by 4:00 p.m. on the preceding business
day.
16. No flammable or explosive fluids or materials shall be kept or used within
the Building or the Project except in areas approved by Landlord, and Tenant
shall comply with all applicable building and fire codes relating thereto.
17. Landlord reserves the right to rescind any of these rules and regulations
and to make such other and further rules and regulations as in its good faith
judgment shall from time to time be reasonably needed for the safety,
protection, care and cleanliness of the Property, the operation thereof, the
preservation of good order therein, and the protection and comfort of the
tenants and their agents, employees, and invitees, which rules and regulations,
when made and written notice thereof is given to Tenant, shall be binding upon
Tenant in like manner as if originally herein prescribed.
18. Landlord reserves the right, in its sole discretion, to designate reserved
parking spaces for certain tenants and to charge therefor. All contractors,
invitees, guests or visitors of Tenant shall park only in spaces designated as
visitor parking by Landlord, the number and location of which Landlord may
modify, reduce or entirely eliminate from time to time, at Landlord's reasonable
discretion.
10
19. The Project is a smoke-free facility. Landlord may designate from time to
time, in Landlord's reasonable discretion, an area or areas outside of the
Building where smoking may take place.
20. The design temperature range for the HVAC system is between 74 degrees
Fahrenheit and 78 degrees Fahrenheit. During the cooling season, the HVAC system
can maintain a maximum delta of 15 degrees Fahrenheit between the temperature
inside the Building and outside the Building.
11
EXHIBIT "G"
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PARKING
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[To be provided]
12
EXHIBIT "H"
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INSURANCE REQUIREMENTS
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[To be provided]
13