1
EXHIBIT 10.4
LEASE AGREEMENT
by and between
WILDWOOD ASSOCIATES
("Landlord")
and
THE PROFIT RECOVERY GROUP INTERNATIONAL I, INC.
("Tenant")
dated
July ___, 1998
for
Suite Number 900
containing
62,576 square feet of Rentable Floor Area
Term: Sixty (60) months
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
2
TABLE OF CONTENTS
Page
----
1. Certain Definitions.........................................................1
2. Lease of Premises...........................................................2
3. Term........................................................................2
4. Possession..................................................................2
5. Rental Payments.............................................................3
6. Base Rental.................................................................4
7. Rent Escalation.............................................................4
8. Additional Rental...........................................................5
9. Operating Expenses..........................................................7
10. Tenant Taxes; Rent Taxes..................................................11
11. Payments..................................................................12
12. Late Charges..............................................................12
13. Use Rules.................................................................12
14. Alterations...............................................................12
15. Repairs...................................................................13
16. Landlord's Right of Entry.................................................14
17. Insurance.................................................................14
18. Waiver of Subrogation.....................................................15
19. Default...................................................................16
20. Waiver of Breach..........................................................19
21. Assignment and Subletting.................................................19
22. Destruction...............................................................20
24. Services by Landlord......................................................21
25. Attorneys' Fees and Homestead.............................................21
26. Time......................................................................22
27. Subordination and Attornment..............................................22
28. Estoppel Certificates.....................................................23
29. No Estate.................................................................23
30. Cumulative Rights.........................................................23
31. Holding Over..............................................................24
32. Surrender of Premises.....................................................24
33. Notices...................................................................24
34. Damage or Theft of Personal Property......................................25
35. Eminent Domain............................................................25
36. Parties...................................................................27
37. Liability.................................................................27
39. Force Majeure.............................................................28
40. Landlord's Liability......................................................28
41. Landlord's Covenant of Quiet Enjoyment....................................28
42. Security Deposit..........................................................28
i
3
43. Hazardous Substances......................................................28
44. Submission of Lease.......................................................29
45. Severability..............................................................29
46. Entire Agreement..........................................................29
47. Headings..................................................................30
48. Broker....................................................................30
49. Governing Law.............................................................30
50. Special Stipulations......................................................30
51. Authority.................................................................30
52. Financial Statements......................................................31
54. ERISA Compliance..........................................................31
Rules and Regulations
Exhibit "A" - Legal Description of Land
Exhibit "B" - Floor Plan
Exhibit "C" - Supplemental Notice
Exhibit "D" - Landlord's Construction
Exhibit "E" - Building Standard Services
Exhibit "F" - Guaranty - Intentionally Omitted
Exhibit "G" - Special Stipulations
ii
4
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), is made and entered into this ______
day of July, 1998, by and between Landlord and Tenant.
W I T N E S S E T H:
1. Certain Definitions. For purposes of this Lease, the following
terms shall have the meanings hereinafter ascribed thereto:
(a) Landlord: WILDWOOD ASSOCIATES, a Georgia general
partnership
(b) Landlord's Address:
Wildwood Associates
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Secretary
(c) Tenant: THE PROFIT RECOVERY GROUP INTERNATIONAL I,
INC.
(d) Tenant's Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(e) Building Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(f) Suite Number: 900
(g) Rentable Floor Area of Demised Premises:
62,576 square feet.
(h) Rentable Floor Area of Building:
618,540 square feet.
5
(i) Lease Term: Sixty (60) months.
(j) Base Rental Rate: $16.00 per square foot of Rentable
Floor Area of Demised Premises per year, subject to adjustments as set
forth in Article 7 below.
(k) Rental Commencement Date: March 1, 2000.
(l) Rent Deposit: Intentionally Deleted.
(m) Construction Allowance: None.
(n) Security Deposit: Intentionally Deleted.
(o) Broker(s): Cousins Properties Incorporated ("CPI")
and ▇▇▇▇▇▇ & Associates
2. Lease of Premises. Landlord, in consideration of the covenants
and agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant does
hereby rent and lease from Landlord, certain premises (the "Demised Premises")
in the building (hereinafter referred to as "Building") located on that certain
tract of land (the "Land") more particularly described on Exhibit "A" attached
hereto and by this reference made a part hereof, which Demised Premises are
outlined in red or crosshatched on the floor plan attached hereto as Exhibit "B"
and by this reference made a part hereof, with no easement for light, view or
air included in the Demised Premises or being granted hereunder. The "Project"
is comprised of the Building, the Land, the Building's parking facilities, any
walkways, covered walkways, tunnels or other means of access to the Building and
the Building's parking facilities, all common areas, including any lobbies or
plazas, and any other improvements or landscaping on the Land. The Project is
located in the development known as "Wildwood Office Park".
3. Term. The term of this Lease ("Lease Term") shall commence on
the date first hereinabove set forth, and, unless sooner terminated as provided
in this Lease, shall end on the expiration of the period designated in Article
1(i) above, which period shall commence on the Rental Commencement Date, unless
the Rental Commencement Date shall be other than the first day of a calendar
month, in which event such period shall commence on the first day of the
calendar month following the month in which the Rental Commencement Date occurs.
Promptly after the Rental Commencement Date Landlord shall send to Tenant a
Supplemental Notice in the form of Exhibit "C" attached hereto and by this
reference made a part hereof, specifying the Rental Commencement Date, the date
of expiration of the Lease Term in accordance with Article 1(i) above and
certain other matters as therein set forth.
4. Possession. Tenant shall have been in occupancy of the Demised
Premises prior to the Rental Commencement Date, and Tenant therefore takes the
Demised Premises "as is,
2
6
where is", with no obligation on the part of Landlord to provide any work
therein or any allowance therefor.
5. Rental Payments.
(a) Commencing on the Rental Commencement Date, and
continuing thereafter throughout the Lease Term, Tenant hereby agrees
to pay all Rent due and payable under this Lease. As used in this
Lease, the term "Rent" shall mean the Base Rental, Tenant's Forecast
Additional Rental, Tenant's Additional Rental, and any other amounts
that Tenant assumes or agrees to pay under the provisions of this Lease
that are owed to Landlord, including without limitation any and all
other sums that may become due by reason of any default of Tenant or
failure on Tenant's part to comply with the agreements, terms,
covenants and conditions of this Lease to be performed by Tenant. Base
Rental together with Tenant's Forecast Additional Rental shall be due
and payable in twelve (12) equal installments on the first day of each
calendar month, commencing on the Rental Commencement Date and
continuing thereafter throughout the Lease Term and any extensions or
renewals thereof, and Tenant hereby agrees to pay such Rent to Landlord
at Landlord's address as provided herein (or such other address as may
be designated in writing by Landlord from time to time) monthly in
advance. Tenant shall pay all Rent and other sums of money as shall
become due from and payable by Tenant to Landlord under this Lease at
the times and in the manner provided in this Lease, without demand,
set-off or counterclaim.
(b) If the Rental Commencement Date is other than the
first day of a calendar month or if this Lease terminates on other than
the last day of a calendar month, then the installments of Base Rental
and Tenant's Forecast Additional Rental for such month or months shall
be prorated on a daily basis and the installment or installments so
prorated shall be paid in advance. Also, if the Rental Commencement
Date occurs on other than the first day of a calendar year, or if this
Lease expires or is terminated on other than the last day of a calendar
year, Tenant's Additional Rental shall be prorated for such
commencement or termination year, as the case may be, by multiplying
such Tenant's Additional Rental by a fraction, the numerator of which
shall be the number of days of the Lease Term (from and after the
Rental Commencement Date) during the commencement or expiration or
termination year, as the case may be, and the denominator of which
shall be 365, and the calculation described in Article 8 hereof shall
be made as soon as possible after the expiration or termination of this
Lease, Landlord and Tenant hereby agreeing that the provisions relating
to said calculation shall survive the expiration or termination of this
Lease.
(c) As security for Tenant's obligations to take
possession of the Demised Premises in accordance with the terms of this
Lease and to comply with all of Tenant's covenants, warranties and
agreements hereunder, Tenant has deposited with Landlord the sum set
forth in Article 1(l) above. Such amount shall be applied by Landlord
to the first monthly installment(s) of Base Rental as they become due
hereunder. In the event
3
7
Tenant fails to take possession of the Demised Premises as aforesaid or
otherwise fails to comply with any of Tenant's covenants, warranties or
agreements hereunder, said sum shall be retained by Landlord for
application in reduction, but not in satisfaction, of damages suffered
by Landlord as a result of such breach by Tenant. Landlord shall not be
required to keep such deposit separate from its general accounts.
6. Base Rental. Subject to adjustments in accordance with Article
7 below, from and after the Rental Commencement Date Tenant shall pay to
Landlord a base annual rental (herein called "Base Rental") equal to the Base
Rental Rate set forth in Article 1(j) above multiplied by the Rentable Floor
Area of Demised Premises set forth in Article 1(g) above.
7. Rent Escalation.
(a) As used in this Article 7, the term "Lease Year"
shall mean the twelve month period commencing on the Rental
Commencement Date, or, if the Rental Commencement Date is not on the
first day of a calendar month, commencing on the first day of the first
calendar month following the Rental Commencement Date, and each
successive twelve month period thereafter during the Lease Term. The
term "Subsequent Year" shall mean each Lease Year of the Lease Term
following the first Lease Year. The term "Prior Year" shall mean the
Lease Year prior to each Subsequent Year. The term "Index" shall mean
the Consumer Price Index for all Urban Consumers (U.S. City Average;
Base 1982-84=100), published by the Bureau of Labor Statistics of the
United States Department of Labor. The term "Base Month" shall mean the
calendar month which is two (2) months prior to the month during which
this Lease is fully executed by Landlord and Tenant. The term
"Comparison Month" shall mean the calendar month which is two (2)
months prior to the first full month of each Subsequent Year in
question.
(b) On the first day of each Subsequent Year, the Base
Rental Rate shall be increased to an amount equal to the Base Rental
Rate for the first Lease Year ($16.00) as set forth in Article 1(j)
above, plus an amount equal to the product of ten (10) times the
percentage increase in the Index for the Comparison Month as compared
to the Index for the Base Month, multiplied by the Base Rental Rate for
the first Lease Year ($16.00); provided, however, in no event shall the
Base Rental Rate for a Subsequent Year be less than the Base Rental
Rate applicable to the Prior Year and in no event shall the Base Rental
Rate for the Subsequent Year be greater than the following amounts for
the Lease Years shown:
Second Lease Year $16.48
Third Lease Year $16.97
Fourth Lease Year $17.48
Fifth Lease Year $18.01
(c) If the Bureau of Labor Statistics should discontinue
the publication of the Index, or publish the same less frequently, or
alter the same in some manner, then
4
8
Landlord shall adopt a substitute Index or substitute procedure which
reasonably reflects and monitors consumer prices.
8. Additional Rental.
(a) For purposes of this Lease, "Tenant's Forecast
Additional Rental" shall mean Landlord's reasonable estimate of
Tenant's Additional Rental for the coming calendar year or portion
thereof. If at any time it appears to Landlord, in Landlord's
reasonable judgment, that Tenant's Additional Rental for the current
calendar year will vary from Landlord's estimate by more than five
percent (5%), Landlord shall have the right to revise, by written
notice to Tenant, its estimate for such year, and subsequent payments
by Tenant for such year shall be based upon such revised estimate of
Tenant's Additional Rental. Failure to make a revision contemplated by
the immediately preceding sentence shall not prejudice Landlord's right
to collect the full amount of Tenant's Additional Rental. Prior to the
Rental Commencement Date and thereafter prior to the beginning of each
calendar year during the Lease Term, including any extensions thereof,
Landlord shall present to Tenant a statement of Tenant's Forecast
Additional Rental for such calendar year; provided, however, that if
such statement is not given prior to the beginning of any calendar year
as aforesaid, Tenant shall continue to pay during the next ensuing
calendar year on the basis of the amount of Tenant's Forecast
Additional Rental payable during the calendar year just ended until the
month after such statement is delivered to Tenant.
(b) For purposes of this Lease, "Tenant's Additional
Rental" shall mean for each calendar year (or portion thereof) the
Operating Expense Amount (defined below) multiplied by the number of
square feet of Rentable Floor Area of Demised Premises. As used herein,
"Operating Expense Amount" shall mean an amount equal to (x) plus (y),
where:
(x) equals the amount of Operating Expenses (as defined below)
for such calendar year divided by the greater of (i) 95% of
the number of square feet of Rentable Floor Area of the
Building, or (ii) the total number of square feet of Rentable
Floor Area occupied in the Building for such calendar year on
an average annualized basis; provided, however, if the
Operating Expenses actually incurred by Landlord are lower
than would be incurred if at least 95% of the Building were
occupied or if Landlord shall not furnish any particular
item(s) of work or services (the cost of which would otherwise
be included within Operating Expenses) to portions of the
Building because (A) such portions are not occupied, (B) such
item of work or services is not required or desired by the
tenant of such portion, (C) such tenant is itself obtaining
such item of work or services, or (D) of any other reason,
then appropriate adjustments shall be made to determine
Operating Expenses for such calendar year as though the
Building were actually occupied to the extent of the greater
of (i) or (ii) above and as though Landlord had furnished such
item of work or services to the greater of (i) or (ii) above;
and
5
9
(y) equals a management fee contribution equal to three
percent (3%) of Tenant's Base Rental (on a per square foot
basis) plus three percent (3%) of the per square foot amount
described in (x).
(c)(i) Within one hundred fifty (150) days after the end of
the calendar year in which the Rental Commencement Date occurs
and of each calendar year thereafter during the Lease Term, or
as soon thereafter as practicable, Landlord shall provide
Tenant an itemized statement showing the Operating Expenses
for said calendar year, as prepared by a certified public
accounting firm designated by Landlord, and a statement
prepared by Landlord comparing Tenant's Forecast Additional
Rental with Tenant's Additional Rental. In the event Tenant's
Forecast Additional Rental exceeds Tenant's Additional Rental
for said calendar year, Landlord shall credit such amount
against Rent next due hereunder or, if the Lease Term has
expired or is about to expire, refund such excess to Tenant
within thirty (30) days if Tenant is not in default under this
Lease (in the instance of a default such excess shall be held
as additional security for Tenant's performance, may be
applied by Landlord to cure any such default, and shall not be
refunded until any such default is cured). In the event that
the Tenant's Additional Rental exceeds Tenant's Forecast
Additional Rental for said calendar year, Tenant shall pay
Landlord, within thirty (30) days of receipt of the statement,
an amount equal to such difference. The provisions of this
Lease concerning the payment or refund of Tenant's Additional
Rental shall survive the expiration or earlier termination of
this Lease.
(ii) If Tenant has not received a Statement of Operating
Expenses by the end of the calendar year following the
calendar year in which said statement is due from Landlord, it
shall be conclusively presumed that Landlord has waived its
claim against Tenant for Tenant's share of any additional
Operating Expenses that would have been set forth in such
statement, except for any Operating Expenses which are
adjusted or billed to Landlord by a third-party after such
period would have otherwise expired, which Operating Expenses
may be billed by Landlord within eighteen (18) months of the
receipt of such ▇▇▇▇ or adjustment by Landlord.
(d) For so long as Tenant is not in default under this
Lease, Landlord's books and records pertaining to the calculation of
Operating Expenses for any calendar year within the Lease Term may be
audited by an authorized representative of Tenant at Tenant's expense,
at any time within twelve (12) months after the end of each such
calendar year; provided that Tenant shall give Landlord not less than
twenty (20) days' prior written notice of any such audit. For purposes
hereof, an authorized representative of Tenant shall mean a bona fide
employee of Tenant, any of the "big six" accounting firms, or any other
party reasonably approved in writing by Landlord. In no event shall an
authorized representative of Tenant include the owner of any office
building in the metropolitan Atlanta, Georgia area or any affiliate of
such owner. Prior to the
6
10
commencement of such audit, Tenant shall cause its authorized
representative to agree in writing for the benefit of Landlord that
such representative will keep the results of the audit confidential and
that such representative will not disclose or divulge the results of
such audit except to Tenant and Landlord and except in connection with
any dispute between Landlord and Tenant relating to Operating Expenses.
Such audit shall be conducted during reasonable business hours at
Landlord's office where Landlord's books and records are maintained. If
Tenant causes a written audit report to be prepared by its authorized
representative following any such audit, Tenant shall provide Landlord
with a copy of such report promptly after receipt thereof by Tenant. If
Landlord's calculation of Tenant's Additional Rental for the audited
calendar year was incorrect, then Tenant shall be entitled to a prompt
refund of any overpayment or Tenant shall promptly pay to Landlord the
amount of any underpayment, as the case may be. If Landlord's books and
records show an over-billing by Landlord of five percent (5%) or more
to Tenant, Landlord shall pay all reasonable costs incurred by Tenant
in performing such inspection and/or audit, up to, but not in excess
of, Five Hundred and No/100 Dollars ($500.00).
9. Operating Expenses.
(a) For the purposes of this Lease, "Operating Expenses"
shall mean all expenses, costs and disbursements (but not specific
costs billed to specific tenants of the Building) of every kind and
nature, computed on the accrual basis, relating to or incurred or paid
in connection with the ownership, management, operation, repair and
maintenance of the Project, including but not limited to, the
following:
(1) wages, salaries and other costs of all
on-site and off-site employees engaged either full or part-time in the
operation, management, maintenance or access control of the Project,
including taxes, insurance and benefits relating to such employees,
allocated based upon the time such employees are engaged directly in
providing such services;
(2) the cost of all supplies, tools, equipment
and materials used in the operation, management, maintenance and access
control of the Project;
(3) the cost of all utilities for the Project,
including but not limited to the cost of electricity, gas, water, sewer
services and power for heating, lighting, air conditioning and
ventilating;
(4) the cost of all maintenance and service
agreements for the Project and the equipment therein, including but not
limited to security service, garage operators, window cleaning,
elevator maintenance, HVAC maintenance, janitorial service, waste
recycling service, landscaping maintenance and customary landscaping
replacement;
(5) the cost of repairs and general maintenance
of the Project;
7
11
(6) amortization (together with reasonable
financing charges, whether or not actually incurred) of the cost of
acquisition and/or installation of capital investment items (including
security and energy management equipment), amortized over their
respective useful lives, which are installed for the purpose of
reducing operating expenses, promoting safety, complying with
governmental requirements (other than the cost to remedy any violation
of applicable law, as such law is in effect (including as it is then
interpreted) as of the date hereof), or maintaining the first-class
nature of the Project;
(7) the cost of casualty, rental loss, liability
and other insurance applicable to the Project and Landlord's personal
property used in connection therewith;
(8) the cost of trash and garbage removal, air
quality audits, vermin extermination, and snow, ice and debris removal;
(9) the cost of legal and accounting services
incurred by Landlord in connection with the management, maintenance,
operation and repair of the Project, excluding the owner's or
Landlord's general accounting, such as partnership statements and tax
returns, and excluding services described in Article 9(b)(14) below;
(10) all taxes, assessments and governmental
charges, whether or not directly paid by Landlord, whether federal,
state, county or municipal and whether they be by taxing districts or
authorities presently taxing the Project or by others subsequently
created or otherwise, and any other taxes and assessments attributable
to the Project or its operation (and the costs of contesting any of the
same), including business license taxes and fees, excluding, however,
taxes and assessments imposed on the personal property of the tenants
of the Project, federal and state taxes on income, death taxes,
franchise taxes, and any taxes (other than business license taxes and
fees) imposed or measured on or by the income of Landlord from the
operation of the Project; and it is agreed that Tenant will be
responsible for ad valorem taxes on its personal property and on the
value of the leasehold improvements in the Demised Premises to the
extent that the same exceed Building Standard allowances, if said taxes
are based upon an assessment which includes the cost of such leasehold
improvements in excess of Building Standard allowances (and if the
taxing authorities do not separately assess Tenant's leasehold
improvements, Landlord may make an appropriate allocation of the ad
valorem taxes allocated to the Project to give effect to this
sentence);
(11) the cost of operating the management office
for the Project and an equitable portion of the cost of operating the
management office for Wildwood Office Park, including in each case the
cost of office supplies, bulletins or newsletters distributed to
tenants, postage, telephone expenses, maintenance and repair of office
equipment, non-capital investment equipment, amortization (together
with reasonable financing charges) of the cost of capital investment
equipment, and rent; and
8
12
(12) the pro rata share applicable to the Project
of the sum of (i) the actual costs of operation, maintenance, repair
and replacement of the landscaping and irrigation systems now or
hereafter located along Windy Ridge Parkway, ▇▇▇▇▇ ▇▇▇▇ Road, Wildwood
Parkway, Wildwood Plaza, the right-of-way areas of Powers Ferry Road
adjoining Wildwood Office Park, and all future roadways, whether public
or private, constructed in Wildwood Office Park, together with the
landscaped median strips and shoulders of such roadways (but not
including the landscaping and irrigation system located on the shoulder
of any roadway contiguous to a site upon which construction of
improvements has commenced) and any and all light systems located on or
in any rights-of-way for private roads within the Wildwood Office Park;
(ii) ad valorem taxes on any private roadways now or hereafter located
within Wildwood Office Park and on any medians adjacent to public roads
if such medians are not included in public road rights-of-way; (iii)
the actual costs of ownership, operation, maintenance, repair and
replacement of office park signage for Wildwood Office Park and any
underground sanitary sewer lines, storm water drainage lines, electric
lines, gas lines, water lines, telephone lines and communication lines
serving the Wildwood Office Park which are located across, through and
under any public or private roadways now or hereafter located within
Wildwood Office Park, except for any such utility facilities serving
solely another project within Wildwood Office Park; (iv) the actual
costs of ownership, operation, maintenance, repair and replacement of
any private transportation system and equipment from time to time
provided or made available to the developed portions of Wildwood Office
Park, including but not limited to ad valorem taxes on personal
property or equipment, electricity, fuel, painting and cleaning costs;
(v) the actual costs and expenses of ownership and operation of any
security patrols or services, if any, from time to time provided to
Wildwood Office Park in general, but excluding any such security
patrols or services provided solely to another project within Wildwood
Office Park; and (vi) such other reasonable, actual costs and expenses
incurred by Landlord as "Owner" of the Project under and pursuant to
that certain Master Declaration of Covenants and Cross-Easements for
Wildwood Office Park dated as of January 23, 1991, recorded in Deed
Book 5992, page 430, ▇▇▇▇ County, Georgia records, as modified, amended
or supplemented from time to time (the "Master Declaration"). The share
of the foregoing costs which are applicable to the Project shall be
determined in accordance with the Master Declaration.
Landlord shall not employ or contract with any affiliated entity in the
performance of any work or services which are included in Operating
Expenses unless the cost of same is no greater than the reasonable cost
of same if such work or services were provided by a non-affiliated
entity of the same or similar quality and reputation as the entity
affiliated with Landlord. For the purposes of this provision, an
"affiliated entity" shall include (i) an entity owned by Landlord or
any principal of Landlord, or (ii) any person or entity having common
ownership or control with Landlord or any principal of Landlord.
Notwithstanding anything to the contrary provided in this Lease, (i)
all capital investment items which fall within the definition of
"Operating Expenses" shall be amortized with
9
13
reasonable financing rates over the useful life of the item and
included in Operating Expenses in installments based on amortization;
and (ii) any maintenance or repair or operating service or work
procured by Landlord for the Project shall be provided at competitive
rates.
Operating Expenses shall be "net" only, and for that purpose shall be
reduced by the amounts of any reimbursement, refund or credit actually
received by Landlord with respect to any item of cost that is included
in Operating Expenses, including, but not limited to, heating,
ventilating, air conditioning and electricity. If any such
reimbursement, refund or credit is actually received or receivable by
Landlord in a later year, it shall be applied against the Operating
Expenses for such later year; provided, however, that, if the Term of
this Lease has expired, Tenant's share of such item shall be refunded
by Landlord to Tenant within thirty (30) days after receipt by
Landlord.
(b) For purposes of this Lease, and notwithstanding
anything in any other provision of this Lease to the contrary,
"Operating Expenses" shall not include the following:
(1) the cost of any special work or service
performed for any tenant (including Tenant) at such tenant's cost;
(2) the cost of installing, operating and
maintaining any specialty service, such as an observatory, broadcasting
facility, luncheon club, restaurant, cafeteria, retail store, sundry
shop, newsstand, or concession, but only to the extent such costs
exceed those which would normally be expected to be incurred had such
space been general office space;
(3) the cost of correcting defects in
construction;
(4) compensation paid to officers and executives
of Landlord (but it is understood that the office park manager, the
on-site building manager and other on-site employees below the grade of
building manager may carry a title such as vice president and the
salaries and related benefits of these officers/employees of Landlord
would be allowable Operating Expenses under Article 9[a][1] above);
(5) the cost of any items for which Landlord is
reimbursed by insurance, condemnation or otherwise, except for costs
reimbursed pursuant to provisions similar to Articles 8 and 9 hereof;
(6) the cost of any additions, changes,
replacements and other items which are made in order to prepare for a
new tenant's occupancy;
(7) the cost of repairs incurred by reason of
fire or other casualty reimbursed by insurance proceeds under policies
maintained by Landlord;
10
14
(8) insurance premiums to the extent Landlord
may be directly reimbursed therefor, except for premiums reimbursed
pursuant to provisions similar to Articles 8 and 9 hereof;
(9) interest on debt or amortization payments on
any mortgage or deed to secure debt (except to the extent specifically
permitted by Article 9[a]) and rental under any ground lease or other
underlying lease;
(10) any real estate brokerage commissions or
other costs incurred in procuring tenants or any fee in lieu of such
commission;
(11) any advertising expenses incurred in
connection with the marketing of any rentable space;
(12) rental payments for base building equipment
such as HVAC equipment and elevators;
(13) any expenses for repairs or maintenance
which are covered by warranties and service contracts, to the extent
such maintenance and repairs are made at no cost to Landlord;
(14) legal expenses arising out of the
construction of the improvements on the Land or the enforcement of the
provisions of any lease affecting the Land or Building, including
without limitation this Lease; and
(15) management fees (Tenant's obligation for a
management fee contribution is set forth in Article 8[b][y] above).
10. Tenant Taxes; Rent Taxes. Tenant shall pay promptly when due
all taxes directly or indirectly imposed or assessed upon Tenant's gross sales,
business operations, machinery, equipment, trade fixtures and other personal
property or assets, whether such taxes are assessed against Tenant, Landlord or
the Building. In the event that such taxes are imposed or assessed against
Landlord or the Building Landlord, within thirty (30) days after receipt, shall
furnish Tenant with all applicable tax bills, public charges and other
assessments or impositions and Tenant shall forthwith pay the same directly to
the taxing authority, with reasonable evidence of such payment provided to
Landlord. In addition, in the event there is imposed at any time a tax upon
and/or measured by the rental payable by Tenant under this Lease, whether by way
of a sales or use tax or otherwise, Tenant shall be responsible for the payment
of such tax and shall pay the same on or prior to the due date thereof;
provided, however, that the foregoing shall not include any inheritance, estate,
succession, transfer, gift or income tax imposed on or payable by Landlord.
11
15
11. Payments. All payments of Rent and other payments to be made
to Landlord shall be made on a timely basis and shall be payable to Landlord or
as Landlord may otherwise designate in writing. All such payments shall be
mailed or delivered to Landlord's Address designated in Article 1(b) above or at
such other place as Landlord may designate from time to time in writing. If
mailed, all payments shall be mailed in sufficient time and with adequate
postage thereon to be received in Landlord's account by no later than the due
date for such payment. Tenant agrees to pay to Landlord Fifty Dollars ($50.00)
for each check presented to Landlord in payment of any obligation of Tenant
which is not paid by the bank on which it is drawn, together with interest from
and after the due date for such payment at the rate of twelve percent (12%) per
annum on the amount due.
12. Late Charges. Any Rent or other amounts payable to Landlord
under this Lease, if not paid by the fifth day of the month for which such Rent
is due, or by the due date specified on any invoices from Landlord for any other
amounts payable hereunder, shall incur a late charge of Fifty Dollars ($50.00)
for Landlord's administrative expense in processing such delinquent payment and
in addition thereto shall bear interest at the rate of twelve percent (12%) per
annum from and after the due date for such payment. In no event shall the rate
of interest payable on any late payment exceed the legal limits for such
interest enforceable under applicable law.
13. Use Rules. The Demised Premises shall be used for any lawful
use, but subject to and in accordance with all applicable laws, ordinances,
rules and regulations of governmental authorities, any limitations or
restrictions imposed by other tenants or users of the Building from time, and
the Rules and Regulations attached hereto and made a part hereof. The occupancy
rate of the Demised Premises shall in no event be more than one (1) person per
200 square feet of Rentable Floor Area within the Demised Premises. Tenant
covenants and agrees to abide by the Rules and Regulations in all respects as
now set forth and attached hereto or as hereafter promulgated by Landlord;
provided, however, that Landlord shall provide Tenant with at least thirty (30)
days prior written notice of any such new Rule and Regulation, and no such new
Rule and Regulation shall materially and adversely affect Tenant's rights
hereunder. Landlord shall have the right at all times during the Lease Term to
publish and promulgate and thereafter enforce such reasonable, uniform and
non-discriminatory rules and regulations or changes in the existing Rules and
Regulations as it may reasonably deem necessary in its sole discretion to
protect the tenantability, safety, operation, and welfare of the Demised
Premises, the Project and Wildwood Office Park.
14. Alterations. Except for any initial improvement of the Demised
Premises pursuant to Exhibit "D", which shall be governed by the provisions of
said Exhibit "D", Tenant shall not make, suffer or permit to be made any
alterations, additions or improvements to or of the Demised Premises or any part
thereof, or attach any fixtures or equipment thereto, without first obtaining
Landlord's written consent, which consent shall not be unreasonably withheld,
conditioned or delayed. Any such alterations, additions or improvements to the
Demised Premises consented to by Landlord shall be made by either (i) a
contractor selected by Tenant and consented to by Landlord (which consent shall
not be unreasonably withheld, conditioned or delayed by Landlord), or (ii) by
Landlord or under Landlord's supervision for Tenant's account,
12
16
and Tenant shall reimburse Landlord for all costs thereof (including a
reasonable charge for Landlord's overhead), as Rent, within ten (10) days after
receipt of a statement. All such alterations, additions and improvements shall
become Landlord's property at the expiration or earlier termination of the Lease
Term and shall remain on the Demised Premises without compensation to Tenant
unless Landlord elects by notice to Tenant to have Tenant remove such
alterations, additions and improvements, in which event, notwithstanding any
contrary provisions respecting such alterations, additions and improvements
contained in Article 32 hereof, Tenant shall promptly restore, at its sole cost
and expense, the Demised Premises to its condition prior to the installation of
such alterations, additions and improvements, normal wear and tear excepted.
Notwithstanding the above, Tenant shall be entitled to make non-structural
alterations which do not affect the Building systems, so long as such
alterations do not exceed Ten Thousand and No/100 Dollars ($10,000.00) in cost
with notice to, but without the need for the prior consent of, Landlord. In such
event, Tenant shall provide Landlord with the as-built plans of such
alterations, if any are prepared.
15. Repairs.
(a) Landlord shall maintain in good order and repair (as
compared to other first-class properties of similar quality in the area
of the Building), subject to normal wear and tear and subject to
casualty and condemnation, the Building (excluding the Demised Premises
and other portions of the Building leased to other tenants), the
Building parking facilities, the public areas and the landscaped areas.
Notwithstanding the foregoing obligation, the cost of any repairs or
maintenance to the foregoing necessitated by the intentional acts or
gross negligence of Tenant or its agents, contractors, employees,
invitees, licensees, tenants or assigns, shall be borne solely by
Tenant and shall be deemed Rent hereunder and shall be reimbursed by
Tenant to Landlord within thirty (30) days of written demand. Landlord
shall not be required to make any repairs or improvements to the
Demised Premises except structural repairs necessary for safety and
tenantability. Landlord shall keep in good order and repair the roof,
floor slab, gutters, downspouts, drains and leaders, load bearing
structures and exterior walls of the Premises, all utility lines and
systems up to their point of entry into the Premises, and all lines and
systems within the Premises that do not exclusively serve the Premises.
(b) Tenant covenants and agrees that it will take good
care of the Demised Premises and all alterations, additions and
improvements thereto and will keep and maintain the same in good
condition and repair, except for normal wear and tear. Tenant shall as
soon as reasonably practical report, in writing, to Landlord any
defective or dangerous condition known to Tenant. To the fullest extent
permitted by law, Tenant hereby waives all rights to make repairs at
the expense of Landlord as may be provided by any law, statute or
ordinance now or hereafter in effect. Landlord has no obligation and
has made no promise to alter, remodel, improve, repair, decorate or
paint the Demised Premises or any part thereof, except as specifically
and expressly herein set forth.
13
17
(c) Notwithstanding anything to the contrary provided in
this Lease, Landlord shall make all necessary repairs and replacements
to the fire protection sprinklers and systems serving the Demised
Premises, all utility lines and systems up to their point of entry into
the Demised Premises and all pipes, conduits, wires and other lines
running through the Demised Premises which do not exclusively serve the
Demised Premises, with the cost thereof bring an Operating Expense, to
the extent and as chargeable under Article 9 herein.
16. Landlord's Right of Entry. Landlord shall retain duplicate
keys to all doors of the Demised Premises and Landlord and its agents, employees
and independent contractors shall have the right to enter the Demised Premises
at reasonable hours and upon reasonable prior notice (except in an emergency,
for which no prior notice is required) to inspect and examine same, to make
repairs, additions, alterations, and improvements, to exhibit the Demised
Premises to mortgagees, prospective mortgagees, purchasers or tenants, and to
inspect the Demised Premises to ascertain that Tenant is complying with all of
its covenants and obligations hereunder, all without being liable to Tenant in
any manner whatsoever for any damages arising therefrom; provided, however, that
Landlord shall, except in case of emergency, afford Tenant such prior
notification of an entry into the Demised Premises as shall be reasonably
practicable under the circumstances. Landlord shall use its reasonable efforts
not to unreasonably disrupt or disturb Tenant's use of the Demised Premises
during such entry or inspections. Landlord shall be allowed to take into and
through the Demised Premises any and all materials that may be required to make
such repairs, additions, alterations or improvements. During such time as such
work is being carried on in or about the Demised Premises, the Rent provided
herein shall not ▇▇▇▇▇, and Tenant waives any claim or cause of action against
Landlord for damages by reason of interruption of Tenant's business or loss of
profits therefrom because of the prosecution of any such work or any part
thereof.
17. Insurance. Tenant shall procure at its expense and maintain
throughout the Lease Term a policy or policies of special form/all-risk
insurance insuring the full replacement cost of its furniture, equipment,
supplies, and other property owned, leased, held or possessed by it and
contained in the Demised Premises, together with the excess value of the
improvements to the Demised Premises over the Construction Allowance, and
worker's compensation insurance as required by applicable law. Tenant shall also
procure at its expense and maintain throughout the Lease Term a policy or
policies of commercial general liability insurance, insuring Tenant, Landlord
and any other person reasonably designated by Landlord, against any and all
liability for injury to or death of a person or persons and for damage to
property occasioned by or arising out of any construction work being done on the
Demised Premises, or arising out of the condition, use, or occupancy of the
Demised Premises, or in any way occasioned by or arising out of the activities
of Tenant, its agents, contractors, employees, guests, or licensees in the
Demised Premises, or other portions of the Building, the Project or Wildwood
Office Park, the limits of such policy or policies to be in combined single
limits for both damage to property and personal injury and in amounts not less
than Three Million Dollars ($3,000,000) for each occurrence. Such insurance
shall, in addition, extend to any liability of Tenant arising out of the
indemnities provided for in this Lease. Tenant shall also carry such other types
of insurance in
14
18
form and amount which Landlord shall reasonably deem to be prudent for Tenant to
carry, should the circumstances or conditions so merit Tenant carrying such type
of insurance. All insurance policies procured and maintained by Tenant pursuant
to this Article 17 shall name Landlord and any additional parties reasonably
designated by Landlord as additional insured, shall be carried with companies
licensed to do business in the State of Georgia having a rating from Best's
Insurance Reports of not less than A-/X, and shall be non-cancelable and not
subject to material change except after thirty (30) days' written notice to
Landlord. Such policies or duly executed certificates of insurance with respect
thereto, accompanied by proof of payment of the premium therefor, shall be
delivered to Landlord prior to the Rental Commencement Date, and renewals of
such policies shall be delivered to Landlord at least thirty (30) days prior to
the expiration of each respective policy term.
Landlord shall procure and maintain at its expense (but with the
expense to be included in Operating Expenses) throughout the Lease Term a policy
or policies of special form/all-risk (including rent loss coverage) real and
personal property insurance covering the Project (including the leasehold
improvements in the Demised Premises up to the amount of the Construction
Allowance, but excluding Tenant's personal property and equipment), in an amount
equal to the full insurable replacement cost thereof as such may increase from
time to time (but such insurance may provide for a commercially reasonable
deductible), and in an amount sufficient to comply with any co-insurance
requirements in such policy, and a policy of workers' compensation insurance, if
any, as required by applicable law. In addition, Landlord shall procure and
maintain at its expense (but with the expense to be included in Operating
Expenses) and shall thereafter maintain throughout the Lease Term, a commercial
general liability insurance policy covering the Project with combined single
limits for both damage to property and personal injury of not less than Three
Million Dollars ($3,000,000) per occurrence, subject to annual aggregate limits
of not less than Five Million Dollars ($5,000,000). Landlord may also carry such
other types of insurance in form and amounts which Landlord shall determine to
be appropriate from time to time, and the cost thereof shall be included in
Operating Expenses. All such policies procured and maintained by Landlord
pursuant to this Article 17 shall be carried with companies licensed to do
business in the State of Georgia. Any insurance required to be carried by
Landlord hereunder may be carried under blanket policies covering other
properties of Landlord and/or its partners and/or their respective related or
affiliated corporations so long as such blanket policies provide insurance at
all times for the Project as required by this Lease.
18. Waiver of Subrogation. Landlord and Tenant shall each have
included in all policies of fire, extended coverage, business interruption and
loss of rents insurance respectively obtained by them covering the Demised
Premises, the Building and contents therein, a waiver by the insurer of all
right of subrogation against the other in connection with any loss or damage
thereby insured against. Any additional premium for such waiver shall be paid by
the primary insured. To the full extent permitted by law, Landlord and Tenant
each waives all right of recovery against the other for, and agrees to release
the other from liability for, loss or damage to the extent such loss or damage
(a) is covered by valid and collectible insurance in effect at the time of such
loss or damage (or required to be in effect at the time of such loss or damage),
or
15
19
(b) would be covered by the insurance required to be maintained under this Lease
by the party seeking recovery.
19. Default.
(a) The following events shall be deemed to be events of
default by Tenant under this Lease: (i) Tenant shall fail to pay any
installment of Rent or any other charge or assessment against Tenant
pursuant to the terms hereof within five (5) days after the date notice
of such late payment is received by Tenant; provided, however, if more
than two (2) payments due of Tenant hereunder in any one (1) calendar
year are not made until after notice of such late payment is received
by Tenant, then it shall be an event of default hereunder by Tenant if
any subsequent payment due of Tenant hereunder in the same calendar
year is not made within ten (10) days of the date when due; (ii) Tenant
shall fail to comply with any term, provision, covenant or warranty
made under this Lease by Tenant, other than the payment of the Rent or
any other charge or assessment payable by Tenant, and shall not cure
such failure within fifteen (15) days after notice thereof to Tenant,
or such longer period as is necessary to cure such default, provided
Tenant is diligently pursuing same, and such cure is effectuated in any
event within sixty (60) days after notice thereof is given to Tenant;
(iii) Tenant or any guarantor of this Lease shall make a general
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts as they become due, or shall file a petition
in bankruptcy, or shall be adjudicated as bankrupt or insolvent, or
shall file a petition in any proceeding seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or regulation,
or shall file an answer admitting or fail timely to contest the
material allegations of a petition filed against it in any such
proceeding; (iv) a proceeding is commenced against Tenant or any
guarantor of this Lease seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
under any present or future statute, law or regulation, and such
proceeding shall not have been dismissed within ninety (90) days after
the commencement thereof; (v) a receiver or trustee shall be appointed
for all or substantially all of the assets of Tenant or of any
guarantor of this Lease; (vi) Tenant shall fail to take possession of
the Demised Premises as provided in this Lease; (vii) Tenant shall do
or permit to be done anything which creates a lien upon the Demised
Premises or the Project and such lien is not removed or discharged
within fifteen (15) days after Tenant is provided notice of the filing
thereof; (viii) Tenant shall fail to return a properly executed
instrument to Landlord in accordance with the provisions of Article 27
hereof within the time period provided for such return following
Landlord's request for same as provided in Article 27 and such failure
continues for ten (10) days after notice of such failure is provided to
Tenant; or (ix) Tenant shall fail to return a properly executed
estoppel certificate to Landlord in accordance with the provisions of
Article 28 hereof within the time period provided for such return
following Landlord's request for same as provided in Article 28 and
such failure continues for ten (10) days after notice of such failure
is provided to Tenant.
16
20
(b) Upon the occurrence of any of the aforesaid events of
default, Landlord shall have the option to pursue any one or more of
the following remedies without any further notice or demand whatsoever:
(i) terminate this Lease, in which event Tenant shall immediately
surrender the Demised Premises to Landlord and if Tenant fails to do
so, Landlord may without prejudice to any other remedy which it may
have for possession or arrearages in Rent, enter upon and take
possession of the Demised Premises and expel or remove Tenant and any
other person who may be occupying said Demised Premises or any part
thereof without being liable for prosecution or any claim of damages
therefor; Tenant hereby agreeing to pay to Landlord on demand the
amount of all loss and damage which Landlord may suffer by reason of
such termination, whether through inability to relet the Demised
Premises on satisfactory terms or otherwise; (ii) terminate Tenant's
right of possession (but not this Lease) and enter upon and take
possession of the Demised Premises and expel or remove Tenant and any
other person who may be occupying said Demised Premises or any part
thereof, by entry, dispossessory suit or otherwise, without thereby
releasing Tenant from any liability hereunder, without terminating this
Lease, and without being liable for prosecution or any claim of damages
therefor and, if Landlord so elects, make such alterations,
redecorations and repairs as, in Landlord's judgment, may be necessary
to relet the Demised Premises, and Landlord may, but shall be under no
obligation to do so, relet the Demised Premises or any portion thereof
in Landlord's or Tenant's name, but for the account of Tenant, for such
term or terms (which may be for a term extending beyond the Lease Term)
and at such rental or rentals and upon such other terms as Landlord may
deem advisable, with or without advertisement, and by private
negotiations, and receive the rent therefor, Tenant hereby agreeing to
pay to Landlord the deficiency, if any, between all Rent reserved
hereunder and the total rental applicable to the Lease Term hereof
obtained by Landlord re-letting, and Tenant shall be liable for
Landlord's expenses in redecorating and restoring the Demised Premises
and all costs incident to such re-letting, including broker's
commissions and lease assumptions, and in no event shall Tenant be
entitled to any rentals received by Landlord in excess of the amounts
due by Tenant hereunder; or (iii) enter upon the Demised Premises
without being liable for prosecution or any claim of damages therefor,
and do whatever Tenant is obligated to do under the terms of this
Lease; and Tenant agrees to reimburse Landlord on demand for any
expenses including, without limitation, reasonable attorneys' fees
which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease and Tenant further agrees that Landlord
shall not be liable for any damages resulting to Tenant from such
action, except to the extent expressly arising under Article 37 herein.
If this Lease is terminated by Landlord as a result of the occurrence
of an event of default, Landlord may declare to be due and payable
immediately, the present value (calculated with a discount factor of
eight percent [8%] per annum) of the difference between (x) the entire
amount of Rent and other charges and assessments which in Landlord's
reasonable determination would become due and payable during the
remainder of the Lease Term determined as though this Lease had not
been terminated (including, but not limited to, increases in Rent
pursuant to Article 7 hereof), and (y) the then fair market rental
value of the Demised Premises for the remainder of the Lease Term. Upon
the acceleration of such amounts,
17
21
Tenant agrees to pay the same at once, together with all Rent and other
charges and assessments theretofore due, at Landlord's address as
provided herein, it being agreed that such payment shall not constitute
a penalty or forfeiture but shall constitute liquidated damages for
Tenant's failure to comply with the terms and provisions of this Lease
(Landlord and Tenant agreeing that Landlord's actual damages in such
event are impossible to ascertain and that the amount set forth above
is a reasonable estimate thereof).
(c) Pursuit of any of the foregoing remedies shall not
preclude pursuit of any other remedy herein provided or any other
remedy provided by law or at equity, nor shall pursuit of any remedy
herein provided constitute an election of remedies thereby excluding
the later election of an alternate remedy, or a forfeiture or waiver of
any Rent or other charges and assessments payable by Tenant and due to
Landlord hereunder or of any damages accruing to Landlord by reason of
violation of any of the terms, covenants, warranties and provisions
herein contained. No reentry or taking possession of the Demised
Premises by Landlord or any other action taken by or on behalf of
Landlord shall be construed to be an acceptance of a surrender of this
Lease or an election by Landlord to terminate this Lease unless written
notice of such intention is given to Tenant. Forbearance by Landlord to
enforce one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute a waiver of such
default. In determining the amount of loss or damage which Landlord may
suffer by reason of termination of this Lease or the deficiency arising
by reason of any reletting of the Demised Premises by Landlord as above
provided, allowance shall be made for the expense of repossession.
Tenant agrees to pay to Landlord all reasonable, actual costs and
expenses incurred by Landlord in the enforcement of this Lease,
including, without limitation, the fees of Landlord's attorneys as
provided in Article 25 hereof.
(d) The abandonment or vacation of the Demised Premises
shall not be an event of default by Tenant under this Lease, but in the
event Tenant shall abandon or vacate the Demised Premises, unless due
to a casualty, condemnation or remodeling (which remodeling is being
diligently prosecuted), Landlord may, at any time while such
abandonment or vacation of the Demised Premises is continuing, notify
Tenant of Landlord's election to terminate this Lease, in which event
this Lease shall terminate on the date so selected by Landlord in
Landlord's written election to terminate this Lease, and on the date so
set forth in Landlord's written election, this Lease shall terminate
and come to an end as though the date selected by Landlord were the
last day of the natural expiration of the Lease Term; provided,
however, that no such termination shall affect or limit any obligations
or liabilities of Tenant arising or accruing under this Lease prior to
the effective date of any such termination; and provided further that
Tenant may rescind Landlord's election by (i) notifying Landlord in
writing, within ten (10) days after receipt of Landlord's written
election to terminate this Lease, that Tenant will reoccupy the Demised
Premises for business purposes and (ii) in fact, so reoccupying the
Demised Premises for business purposes within sixty (60) days
thereafter, or such other reasonably practical time period, if longer,
but not to exceed one hundred twenty (120) days.
18
22
20. Waiver of Breach. No waiver of any breach of the covenants,
warranties, agreements, provisions, or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition or of any subsequent breach thereof, and if any breach shall occur and
afterwards be compromised, settled or adjusted, this Lease shall continue in
full force and effect as if no breach had occurred.
21. Assignment and Subletting. (a) Tenant shall not, without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed, assign this Lease or any interest herein or in
the Demised Premises, or mortgage, pledge, encumber, hypothecate or otherwise
transfer or sublet the Demised Premises or any part thereof or permit the use of
the Demised Premises by any party other than Tenant. Consent to one or more such
transfers or subleases shall not destroy or waive this provision, and all
subsequent transfers and subleases shall likewise be made only upon obtaining
the prior written consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed. Without limiting the foregoing prohibition, in
no event shall Tenant assign this Lease or any interest herein, whether
directly, indirectly or by operating of law, or sublet the Demised Premises or
any part thereof or permit the use of the Demised Premises or any part thereof
by any party (i) if the proposed assignee or subtenant is a party who would (or
whose use would) detract from the character of the Building as a first-class
building, such as, without limitation, a dental, medical or chiropractic office
or a governmental office, (ii) if the proposed use of the Demised Premises shall
involve an occupancy rate of more than one (1) person per 200 square feet of
Rentable Floor Area within the Demised Premises, (iii) if the proposed
assignment or subletting shall be to a governmental subdivision or agency or any
person or entity who enjoys diplomatic or sovereign immunity, (iv) if such
proposed assignee or subtenant is an existing tenant of the Building, or (v) if
such proposed assignment, subletting or use would contravene any restrictive
covenant (including any exclusive use) granted to any other tenant of the
Building. Sublessees or transferees of the Demised Premises for the balance of
the Lease Term shall become directly liable to Landlord for all obligations of
Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's
obligations hereunder) of any liability therefor, and Tenant shall remain
obligated for all liability to Landlord arising under this Lease during the
entire remaining Lease Term. Landlord may, as a prior condition to considering
any request for consent to an assignment or sublease, require Tenant to obtain
and submit current financial statements of any proposed subtenant or assignee.
In the event Landlord consents to an assignment or sublease, Tenant shall pay to
Landlord a fee to cover Landlord's accounting costs plus any legal fees actually
incurred by Landlord as a result of the assignment or sublease, such legal fees
charged to Tenant not to exceed Five Hundred and No/100 Dollars ($500.00) per
occurrence or request. Landlord may require an additional security deposit from
the assignee or subtenant as a condition of its consent. Fifty percent (50%) of
any net costs of subletting (including alteration or modification of the Demised
Premises) consideration, in excess of the Rent and other charges and sums due
and payable by Tenant under this Lease, paid to Tenant by any assignee of this
Lease for its assignment, or by any sublessee under or in connection with its
sublease, or otherwise paid to Tenant by another party for use and occupancy of
the Demised Premises or any portion thereof, shall be promptly remitted by
Tenant to Landlord as additional rent hereunder and Tenant shall have no right
or claim thereto as
19
23
against Landlord. No assignment of this Lease consented to by Landlord shall be
effective unless and until Landlord shall receive an original assignment and
assumption agreement, in form and substance reasonably satisfactory to Landlord,
signed by Tenant and Tenant's proposed assignee, whereby the assignee assumes
due performance of this Lease to be done and performed for the balance of the
then remaining Lease Term of this Lease. No subletting of the Demised Premises,
or any part thereof, shall be effective unless and until there shall have been
delivered to Landlord an agreement, in form and substance satisfactory to
Landlord, signed by Tenant and the proposed sublessee, whereby the sublessee
acknowledges the right of Landlord to continue or terminate any sublease, in
Landlord's sole discretion, upon termination of this Lease, and such sublessee
agrees to recognize and attorn to Landlord in the event that Landlord elects
under such circumstances to continue such sublease.
(b) Tenant shall have the right to assign the Lease or sublet the
Demised Premises, or any part thereof, without Landlord's consent, but subject
to Landlord's rights to notice and prohibition contained herein, to any parent,
subsidiary, affiliate or controlled corporation or to corporation which Tenant
may be converted or which it may merge. Tenant shall have the obligation to
notify Landlord of its intent of any such arrangement, and if Landlord
reasonably determines that the proposed assignee or sublessee is engaged in a
business which would materially interfere with the operation of the Building or
that permitting the assignment or subletting would cause a violation by Landlord
of its obligations under any lease covering a portion of the Building, Landlord
shall have the right to prohibit such arrangement based upon the issue of the
business of the proposed assignee or sublessee or the compatibility of the
proposed assignee or sublessee with the businesses in the Building.
22. Destruction.
(a) If the Demised Premises are damaged by fire or other
casualty, the same shall be repaired or rebuilt as speedily as
practical under the circumstances at the expense of the Landlord
(subject to subparagraph [c] below), unless this Lease is terminated as
provided in this Article 22, and during the period required for
restoration, a just and proportionate part of Base Rental shall be
abated until the Demised Premises are repaired or rebuilt substantially
to the condition which existed immediately prior to such casualty.
(b) If the Demised Premises are (i) damaged to such an
extent that repairs cannot, in Landlord's judgment, be completed within
one (1) year after the date of the casualty or (ii) damaged or
destroyed as a result of a risk which is not insured under standard
special form/all-risk insurance policies, or (iii) damaged or destroyed
during the last eighteen (18) months of the Lease Term, or if the
Building is damaged in whole or in part (whether or not the Demised
Premises are damaged), to such an extent that the Building cannot, in
Landlord's judgment, be operated economically as an integral unit, then
and in any such event Landlord may at its option terminate this Lease
by notice in writing to the Tenant within sixty (60) days after the
date of such occurrence. If the Demised Premises are damaged to such an
extent that repairs cannot, in Landlord's judgment, be completed within
one (1) year after the date of the casualty or if the
20
24
Demised Premises are substantially damaged during the last eighteen
(18) months of the Lease Term, then in either such event Tenant may
elect to terminate this Lease by notice in writing to Landlord within
fifteen (15) days after the date of such occurrence. Unless Landlord or
Tenant elects to terminate this Lease as hereinabove provided, this
Lease will remain in full force and effect and Landlord shall repair
such damage at its expense to the extent required in this Article as
expeditiously as possible under the circumstances.
(c) If Landlord should elect or be obligated pursuant to
subparagraph (a) above to repair or rebuild because of any damage or
destruction, Landlord's obligation shall be limited to the original
Building and the leasehold improvements in the Demised Premises (to the
extent such leasehold improvements can be restored for the amount of
the Construction Allowance applicable thereto) and shall not extend to
any furniture, equipment, supplies or other personal property owned or
leased by Tenant, its employees, contractors, invitees or licensees. If
the cost of performing such repairs and restoration exceeds the actual
proceeds of insurance paid or payable to Landlord on account of such
casualty, or if Landlord's mortgagee or the lessor under a ground or
underlying lease shall require that any insurance proceeds from a
casualty loss be paid to it, Landlord may terminate this Lease unless
Tenant, within fifteen (15) days after demand therefor, deposits with
Landlord a sum of money sufficient to pay the difference between the
cost of repair and the proceeds of the insurance available to Landlord
for such purpose.
(d) In no event shall Landlord be liable for any loss or
damage sustained by Tenant by reason of casualties mentioned
hereinabove or any other accidental casualty.
23. Landlord's Lien. INTENTIONALLY DELETED
24. Services by Landlord. Landlord shall provide the Building
Standard Services described on Exhibit "E" attached hereto and by reference made
a part hereof.
25. Attorneys' Fees and Homestead. If any Rent or other debt owing
by Tenant to Landlord hereunder is collected by or through an outside
attorney-at-law, Tenant agrees to pay an additional amount equal to Landlord's
reasonable attorney's fees actually incurred. If Landlord uses the services of
any outside attorney in order to secure compliance with any other provisions of
this Lease, to recover damages for any breach or default of any other provisions
of this Lease, or to terminate this Lease or evict Tenant, Tenant shall
reimburse Landlord upon demand for any and all reasonable, actual attorney's
fees and expenses so incurred by Landlord. Tenant waives all homestead rights
and exemptions which it may have under any law as against any obligation owing
under this Lease, and assigns to Landlord its homestead and exemptions to the
extent necessary to secure payment and performance of its covenants and
agreements hereunder. If any action or proceeding is commenced by Tenant to
enforce the terms of the Lease, and Tenant prevails in any such action, Landlord
shall pay Tenant's reasonable attorney's fees actually incurred, in connection
with such action or proceeding.
21
25
26. Time. Time is of the essence of this Lease and whenever a
certain day is stated for payment or performance of any obligation of Tenant or
Landlord, the same enters into and becomes a part of the consideration hereof.
27. Subordination and Attornment.
(a) Tenant agrees that this Lease and all rights of
Tenant hereunder are and shall be subject and subordinate to any ground
or underlying lease which may now or hereafter be in effect regarding
the Project or any component thereof, to any mortgage now or hereafter
encumbering the Demised Premises or the Project or any component
thereof, to all advances made or hereafter to be made upon the security
of such mortgage, to all amendments, modifications, renewals,
consolidations, extensions, and restatements of such mortgage, and to
any replacements and substitutions for such mortgage. The terms of this
provision shall be self-operative and no further instrument of
subordination shall be required. Tenant, however, upon written request
of any party in interest, shall execute within fifteen (15) days of
notice of such request such instrument or certificates as may be
reasonably required to carry out the intent hereof, whether said
requirement is that of Landlord or any other party in interest,
including, without limitation, any mortgagee.
(b) If any mortgagee or lessee under a ground or
underlying lease elects to have this Lease superior to its mortgage or
lease and signifies its election in the instrument creating its lien or
lease or by separate recorded instrument, then this Lease shall be
superior to such mortgage or lease, as the case may be. The term
"mortgage", as used in this Lease, includes any deed to secure debt,
deed of trust or security deed and any other instrument creating a lien
in connection with any other method of financing or refinancing. The
term "mortgagee", as used in this Lease, refers to the holder(s) of the
indebtedness secured by a mortgage.
(c) In the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under,
any mortgage covering the Demised Premises or the Project, or in the
event the interests of Landlord under this Lease shall be transferred
by reason of deed in lieu of foreclosure or other legal proceedings, or
in the event of termination of any lease under which Landlord may hold
title, Tenant shall, at the option of the transferee or purchaser at
foreclosure or under power of sale, or the lessor of the Landlord upon
such lease termination, as the case may be (sometimes hereinafter
called "such person"), attorn to such person and shall recognize and be
bound and obligated hereunder to such person as the Landlord under this
Lease; provided, however, that no such person shall be (i) bound by any
payment of Rent for more than one (1) month in advance, except
prepayments in the nature of security for the performance by Tenant of
its obligations under this Lease (and then only if such prepayments
have been deposited with and are under the control of such person);
(ii) bound by any amendment or modification of this Lease made without
the express written consent of the mortgagee or lessor of the Landlord,
as the case may be;
22
26
(iii) obligated to cure any defaults under this Lease of any prior
landlord (including Landlord); (iv) liable for any act or omission of
any prior landlord (including Landlord); (v) subject to any offsets or
defenses which Tenant might have against any prior landlord (including
Landlord); or (vi) bound by any warranty or representation of any prior
landlord (including Landlord) relating to work performed by any prior
landlord (including Landlord) under this Lease. Tenant agrees to
execute any reasonable attornment agreement not in conflict herewith
requested by Landlord, the mortgagee or such person. Tenant's
obligation to attorn to such person shall survive the exercise of any
such power of sale, foreclosure or other proceeding. Tenant agrees that
the institution of any suit, action or other proceeding by any
mortgagee to realize on Landlord's interest in the Demised Premises or
the Building pursuant to the powers granted to a mortgagee under its
mortgage, shall not, by operation of law or otherwise, result in the
cancellation or termination of the obligations of the Tenant hereunder.
Landlord and Tenant agree that notwithstanding that this Lease is
expressly subject and subordinate to any mortgages, any mortgagee, its
successors and assigns, or other holder of a mortgage or of a note
secured thereby, may sell the Demised Premises or the Building, in the
manner provided in the mortgage and may, at the option of such
mortgagee, its successors and assigns, or other holder of the mortgage
or note secured thereby, make such sale of the Demised Premises or
Building subject to this Lease.
28. Estoppel Certificates. Within fifteen (15) days after written
request therefor by either party hereto, the other party hereto agrees to
execute and deliver to the requesting party in recordable form an estoppel
certificate, in a reasonable form, addressed to the requesting party, any
mortgagee or assignee of Landlord's interest in, or purchaser of, the Demised
Premises or the Building or any part thereof, certifying (if such be the case)
that this Lease is unmodified and is in full force and effect (and if there have
been modifications, that the same is in full force and effect as modified and
stating said modifications); that there are no defenses or offsets against the
enforcement thereof or stating those claimed by the party making the
certificate; and stating the date to which Rent and other charges have been
paid. Such certificate shall also include such other information as may
reasonably be required by the requesting party or such mortgagee, proposed
mortgagee, assignee or purchaser. Any such certificate may be relied upon by the
recipient thereof, any mortgagee, proposed mortgagee, assignee, purchaser and
any other party to whom such certificate is addressed.
29. No Estate. This Lease shall create the relationship of
landlord and tenant only between Landlord and Tenant and no estate shall pass
out of Landlord. Tenant shall have only an usufruct, not subject to levy and
sale and not assignable in whole or in part by Tenant except as herein provided.
30. Cumulative Rights. All rights, powers and privileges conferred
hereunder upon the parties hereto shall be cumulative to, but not restrictive
of, or in lieu of those conferred by law.
23
27
31. Holding Over. If Tenant remains in possession after expiration
or termination of the Lease Term with or without Landlord's written consent,
Tenant shall become a tenant-at-sufferance, and there shall be no renewal of
this Lease by operation of law. During the period of any such holding over, all
provisions of this Lease shall be and remain in effect except that the monthly
rental shall be one hundred fifty percent (150%) of the amount of Rent
(including any adjustments as provided herein) payable for the last full
calendar month of the Lease Term including renewals or extensions, for the first
three (3) months of any such holdover, and then double the amount of such Rent
thereafter. The inclusion of the preceding sentence in this Lease shall not be
construed as Landlord's consent for Tenant to hold over.
32. Surrender of Premises. Except as provided in Article 14
herein, upon the expiration or other termination of this Lease, Tenant shall
quit and surrender to Landlord the Demised Premises and every part thereof and
all alterations, additions and improvements thereto, broom clean and in good
condition and state of repair, reasonable wear and tear only excepted. If Tenant
is not then in default, Tenant shall remove all personalty and equipment not
attached to the Demised Premises which it has placed upon the Demised Premises,
and Tenant shall restore the Demised Premises to the condition immediately
preceding the time of placement thereof, less reasonable wear and tear. If
Tenant shall fail or refuse to remove all of Tenant's effects, personalty and
equipment from the Demised Premises upon the expiration or termination of this
Lease for any cause whatsoever or upon the Tenant being dispossessed by process
of law or otherwise, such effects, personalty and equipment shall be deemed
conclusively to be abandoned and may be appropriated, sold, stored, destroyed or
otherwise disposed of by Landlord without written notice to Tenant or any other
party and without obligation to account for them. Tenant shall pay Landlord on
demand any and all reasonable expenses incurred by Landlord in the removal of
such property, including, without limitation, the cost of repairing any damage
to the Building or Project caused by the removal of such property and storage
charges (if Landlord elects to store such property), less any amounts actually
received by Landlord in connection with the disposition of such property, which
Landlord may dispose of in Landlord's sole and absolute discretion. The
covenants and conditions of this Article 32 shall survive any expiration or
termination of this Lease.
33. Notices. All notices required or permitted to be given
hereunder shall be in writing and may be delivered in person to either party or
may be sent by courier or by United States Mail, certified, return receipt
requested, postage prepaid. Any such notice shall be deemed received by the
party to whom it was sent (i) in the case of personal delivery or courier
delivery, on the date of delivery to such party, and (ii) in the case or
certified mail, the date receipt is acknowledged on the return receipt for such
notice or, if delivery is rejected or refused or the U.S. Postal Service is
unable to deliver same because of changed address of which no notice was given
pursuant hereto, the first date of such rejection, refusal or inability to
deliver. All such notices shall be addressed to Landlord or Tenant at their
respective address set forth hereinabove or at such other address as either
party shall have theretofore given to the other by notice as herein provided.
Tenant hereby designates and appoints as its agent to receive notice of all
distraint proceedings and all other notices required under this Lease, to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
24
28
Silfen, Segal, Fryer & ▇▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
34. Damage or Theft of Personal Property. All personal property
brought into Demised Premises by Tenant, or Tenant's employees or business
visitors, shall be at the risk of Tenant only, and Landlord shall not be liable
for theft thereof or any damage thereto occasioned by any act of co-tenants,
occupants, invitees or other users of the Building or any other person. Landlord
shall not at any time be liable for damage to any property in or upon the
Demised Premises, which results from power surges or other deviations from the
constancy of electrical service or from gas, smoke, water, rain, ice or snow
which issues or leaks from or forms upon any part of the Building or from the
pipes or plumbing work of the same, or from any other place whatsoever, except
to the extent such liability would arise under Article 37 herein.
35. Eminent Domain.
(a) If all or part of the Demised Premises shall be taken
for any public or quasi-public use by virtue of the exercise of the
power of eminent domain or by private purchase in lieu thereof, this
Lease shall terminate as to the part so taken as of the date of taking,
and, in the case of a partial taking, either Landlord or Tenant shall
have the right to terminate this Lease as to the balance of the Demised
Premises by written notice to the other within thirty (30) days after
such date; provided, however, that a condition to the exercise by
Tenant of such right to terminate shall be that the portion of the
Demised Premises taken shall be of such extent and nature as
substantially to handicap, impede or impair Tenant's use of the balance
of the Demised Premises, as reasonably determined by Tenant. If title
to so much of the Building is taken that a reasonable amount of
reconstruction thereof will not in Landlord's sole discretion result in
the Building being a practical improvement and reasonably suitable for
use for the purpose for which it is designed, then this Lease shall
terminate on the date that the condemning authority actually takes
possession of the part so condemned or purchased.
(b) If this Lease is terminated under the provisions of
this Article 35, Rent shall be apportioned and adjusted as of the date
of termination. Tenant shall have no claim against Landlord or against
the condemning authority for the value of any leasehold estate or for
the value of the unexpired Lease Term provided that the foregoing shall
not preclude any claim that Tenant may have against the condemning
authority for the unamortized cost of leasehold improvements, to the
extent the same were installed at Tenant's expense (and not with the
proceeds of the Construction Allowance), or for loss of business,
moving expenses or other consequential damages, in accordance with
subparagraph (d) below.
(c) If there is a partial taking of the Building and this
Lease is not thereupon terminated under the provisions of this Article
35, then this Lease shall remain in full force and effect, and Landlord
shall, within a reasonable time thereafter, repair or reconstruct the
remaining portion of the Building to the extent necessary to make the
25
29
same a complete architectural unit; provided that in complying with its
obligations hereunder Landlord shall not be required to expend more
than the net proceeds of the condemnation award which are paid to
Landlord. Rent shall equitably ▇▇▇▇▇ during the period of
reconstruction with respect to any portion of the Demised Premises
which are rendered unsuitable for Tenant's business, as reasonably
determined by Tenant. However, if all or any portion of the Building or
the Project shall be taken, and such taking shall, in Tenant's
reasonable judgment, substantially handicap, impede or impair Tenant's
use of the Demised Premises, Tenant shall have the right to terminate
this Lease by written notice to Landlord within thirty (30) days after
the date of such taking or purchase.
(d) All compensation awarded or paid to Landlord upon a
total or partial taking of the Demised Premises or the Building shall
belong to and be the property of Landlord without any participation by
Tenant; provided, however, that should Landlord receive a lump award
which expressly includes compensation for (i) Tenant's loss of
business, (ii) damage to, and the cost of removal of, trade fixtures,
furniture and other personal property belonging to Tenant, or (iii) the
cost of any leasehold improvements installed at Tenant's expense,
Landlord shall promptly deliver to Tenant the portion of the award
which represents compensation for such items. Nothing herein shall be
construed to preclude Tenant from prosecuting any claim directly
against the condemning authority for loss of business, for damage to,
and cost of removal of, trade fixtures, furniture and other personal
property belonging to Tenant, and for the unamortized cost of leasehold
improvements to the extent same were installed at Tenant's expense (and
not with the proceeds of the Construction Allowance), provided,
however, that no such claim shall diminish or adversely affect
Landlord's award. In no event shall Tenant have or assert a claim for
the value of any unexpired term of this Lease. Subject to the foregoing
provisions of this subparagraph (d), Tenant hereby assigns to Landlord
any and all of its right, title and interest in or to any compensation
awarded or paid as a result of any such taking.
(e) Notwithstanding anything to the contrary contained in
this Article 35, if, during the Lease Term, the use or occupancy of any
part of the Building or the Demised Premises shall be taken or
appropriated temporarily for any public or quasi-public use under any
governmental law, ordinance, or regulations, or by right of eminent
domain, this Lease shall be and remain unaffected by such taking or
appropriation and Tenant shall continue to pay in full all Rent payable
hereunder by Tenant during the Lease Term. In the event of any such
temporary appropriation or taking, Tenant shall be entitled to receive
that portion of any award which represents compensation for the loss of
use or occupancy of the Demised Premises during the Lease Term, and
Landlord shall be entitled to receive that portion of any award which
represents the cost of restoration and compensation for the loss of use
or occupancy of the Demised Premises after the end of the Lease Term.
26
30
36. Parties. The term "Landlord", as used in this Lease, shall
include Landlord and its assigns and successors. It is hereby covenanted and
agreed by Tenant that should Landlord's interest in the Demised Premises cease
to exist for any reason during the Lease Term, then notwithstanding the
happening of such event, this Lease nevertheless shall remain in full force and
effect, and Tenant hereby agrees to attorn to the then owner of the Demised
Premises. The term "Tenant" shall include Tenant and its heirs, legal
representatives and successors, and shall also include Tenant's assignees and
sublessees, if this Lease shall be validly assigned or the Demised Premises
sublet for the balance of the Lease Term or any renewals or extensions thereof.
In addition, Landlord and Tenant covenant and agree that Landlord's right to
transfer or assign Landlord's interest in and to the Demised Premises, or any
part or parts thereof, shall be unrestricted, and that in the event of any such
transfer or assignment by Landlord which includes the Demised Premises,
Landlord's obligations to Tenant hereunder shall cease and terminate, and Tenant
shall look only and solely to Landlord's assignee or transferee for performance
thereof. Notwithstanding the foregoing, Landlord shall not be released from such
liability under any of its covenants and obligations contained in or derived
from this Lease arising out of any acts, occurrences or omissions occurring
after the consummation of such transfer or assignment unless the transferee or
assignee of the Demised Premises shall assume obligations of Landlord under this
Lease. Furthermore, in no event shall Landlord be released from any obligations
or liabilities accruing prior to the date of such transfer or assignment.
37. Liability. Except to the extent covered by and actually funded
under any of the insurance provided or to be provided under the provisions of
Articles 17 and 18 hereof, Tenant hereby indemnifies Landlord from and agrees to
hold Landlord harmless against, any and all liability, loss, cost, damage or
expense, including, without limitation, court costs and reasonable attorneys'
fees actually incurred, imposed on Landlord by any person whomsoever, caused by
the gross negligence or willful misconduct of Tenant, or any of its partners,
employees, contractors, servants, agents, subtenants, or legal representatives,
acting within the scope of their authority. Except to the extent covered by and
actually funded under any of the insurance provided or to be provided under the
provisions of Articles 17 and 18 hereof, Landlord hereby indemnifies Tenant
from, and agrees to hold Tenant harmless against, any and all liability, loss,
cost, damage or expense, including without limitation, court costs and
reasonable attorneys' fees, imposed on Tenant by any person whomsoever, caused
by the gross negligence or willful misconduct of Landlord, or any of its
partners, employees, contractors, servants, agents or legal representatives,
acting within the scope of their authority. Notwithstanding any provision of
this Lease to the contrary, in no event shall Landlord or Tenant have any
liability to the other party for lost profits. The provisions of this Article 37
shall survive the expiration or any termination of this Lease. The party
claiming to be indemnified (the "Indemnitee") hereunder shall promptly notify
the other party (the "Indemnitor") in writing of any liability or asserted
liability which may result in a claim of indemnification. Indemnitor shall have,
at its option, the right to compromise or defend any such matter through legal
counsel of its own choosing, subject to Indemnitee's consent of such legal
counsel, such consent of Indemnitee not to be unreasonably withheld or delayed.
If Indemnitor elects to compromise or defend any such liability pursuant to the
preceding sentence, Indemnitor shall notify Indemnitee in writing promptly of
its intention to do so. Indemnitee shall cooperate
27
31
with Indemnitor and its legal counsel in any compromise or defense against any
such liability or asserted liability.
38. Relocation of the Premises. INTENTIONALLY DELETED.
39. Force Majeure. In the event of strike, lockout, labor trouble,
civil commotion, Act of God, or any other cause beyond a party's control
(collectively "force majeure") resulting in the Landlord's inability to supply
the services or perform the other obligations required of Landlord hereunder,
this Lease shall not terminate and Tenant's obligation to pay Rent and all other
charges and sums due and payable by Tenant shall not be affected or excused and
Landlord shall not be considered to be in default under this Lease. If, as a
result of force majeure, Tenant is delayed in performing any of its obligations
under this Lease, and to pay Rent and all other charges and sums payable by
Tenant hereunder, Tenant's performance shall be excused for a period equal to
such delay and Tenant shall not during such period be considered to be in
default under this Lease with respect to the obligation, performance of which
has thus been delayed.
40. Landlord's Liability. Landlord shall have no personal
liability with respect to any of the provisions of this Lease. If Landlord is in
default with respect to its obligations under this Lease, Tenant shall look
solely to the equity of Landlord in and to the Building and the Land described
in Exhibit "A" hereto for satisfaction of Tenant's remedies, if any. It is
expressly understood and agreed that Landlord's liability under the terms of
this Lease shall in no event exceed the amount of its interest in and to said
Land and Building. In no event shall any partner of Landlord nor any joint
venturer in Landlord, nor any officer, director or shareholder of Landlord or
any such partner or joint venturer of Landlord be personally liable with respect
to any of the provisions of this Lease.
41. Landlord's Covenant of Quiet Enjoyment. Provided Tenant
performs the terms, conditions and covenants of this Lease, and subject to the
terms and provisions hereof, Landlord covenants and agrees to take all necessary
steps to secure and to maintain for the benefit of Tenant the quiet and peaceful
possession of the Demised Premises, for the Lease Term, without hindrance, claim
or molestation by Landlord or any other person lawfully claiming under Landlord.
42. Security Deposit. INTENTIONALLY DELETED.
43. Hazardous Substances. Tenant hereby covenants and agrees that
Tenant shall not cause or permit any "Hazardous Substances" (as hereinafter
defined) to be generated, placed, held, stored, used, located or disposed of at
the Project or any part thereof, except for Hazardous Substances as are commonly
and legally used or stored as a consequence of using the Demised Premises for
general office and administrative purposes, but only so long as the quantities
thereof do not pose a threat to public health or to the environment or would
necessitate a "response action", as that term is defined in CERCLA (as
hereinafter defined), and so long as Tenant strictly complies or causes
compliance with all applicable governmental rules and regulations concerning the
use, storage, production, transportation and disposal of such Hazardous
28
32
Substances. Promptly upon receipt of Landlord's request, Tenant shall submit to
Landlord true and correct copies of any reports filed by Tenant with any
governmental or quasi-governmental authority regarding the generation,
placement, storage, use, treatment or disposal of Hazardous Substances on or
about the Demised Premises. For purposes of this Article 43, "Hazardous
Substances" shall mean and include those elements or compounds which are
contained in the list of Hazardous Substances adopted by the United States
Environmental Protection Agency (EPA) or in any list of toxic pollutants
designated by Congress or the EPA or which are defined as hazardous, toxic,
pollutant, infectious or radioactive by any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability (including, without limitation, strict
liability) or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereinafter in effect
(collectively "Environmental Laws"). Tenant hereby agrees to indemnify Landlord
and hold Landlord harmless from and against any and all losses, liabilities,
including strict liability, damages, injuries, expenses, including reasonable
attorneys' fees, costs of settlement or judgment and claims of any and every
kind whatsoever paid, incurred or suffered by, or asserted against, Landlord by
any person, entity or governmental agency for, with respect to, or as a direct
or indirect result of, the presence in, or the escape, leakage, spillage,
discharge, emission or release from, the Demised Premises of any Hazardous
Substances (including, without limitation, any losses, liabilities, including
strict liability, damages, injuries, expenses, including reasonable attorneys'
fees, costs of any settlement or judgment or claims asserted or arising under
the Comprehensive Environmental Response, Compensation and Liability Act
["CERCLA"], any so-called federal, state or local "Superfund" or "Superlien"
laws or any other Environmental Law); provided, however, that the foregoing
indemnity is limited to matters arising solely from Tenant's violation of the
covenant contained in this Article. The obligations of Tenant under this Article
shall survive any expiration or termination of this Lease.
44. Submission of Lease. The submission of this Lease for
examination does not constitute an offer to lease and this Lease shall be
effective only upon execution hereof by Landlord and Tenant.
45. Severability. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws, the remainder of
this Lease shall not be affected thereby, and in lieu of each clause or
provision of this Lease which is illegal, invalid or unenforceable, there shall
be added as a part of this Lease a clause or provision as nearly identical to
the said clause or provision as may be legal, valid and enforceable.
46. Entire Agreement. This Lease contains the entire agreement of
the parties and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied herein shall be of any force or
effect. No failure of Landlord to exercise any power given Landlord hereunder,
or to insist upon strict compliance by Tenant with any obligation of Tenant
hereunder, and no custom or practice of the parties at variance with the terms
hereof, shall constitute a waiver of Landlord's right to demand exact compliance
with the terms hereof. This Lease may not be altered, waived, amended or
extended except by an instrument in writing
29
33
signed by Landlord and Tenant. This Lease is not in recordable form, and Tenant
agrees not to record or cause to be recorded this Lease or any short form or
memorandum thereof.
47. Headings. The use of headings herein is solely for the
convenience of indexing the various paragraphs hereof and shall in no event be
considered in construing or interpreting any provision of this Lease.
48. Broker. CPI HAS REPRESENTED LANDLORD IN THIS TRANSACTION, AND
▇▇▇▇▇▇ & ASSOCIATES HAS REPRESENTED TENANT IN THIS TRANSACTION. BROKER(S) (AS
DEFINED IN ARTICLE 1[O]) IS (ARE) ENTITLED TO A LEASING COMMISSION FROM LANDLORD
BY VIRTUE OF THIS LEASE, WHICH LEASING COMMISSION SHALL BE PAID BY LANDLORD TO
BROKER(S) IN ACCORDANCE WITH THE TERMS OF A SEPARATE AGREEMENT BETWEEN LANDLORD
AND BROKER(S). Tenant hereby authorizes Broker(s) and Landlord to identify
Tenant as a tenant of the Building and to state the amount of space leased by
Tenant in advertisements and promotional materials relating to the Building.
Tenant represents and warrants to Landlord that (except with respect to any
Broker[s] identified in Article 1[o] hereinabove) no broker, agent, commission
salesperson, or other person has represented Tenant in the negotiations for and
procurement of this Lease and of the Demised Premises and that (except with
respect to any Broker[s] identified in Article 1[o] hereinabove) no commissions,
fees, or compensation of any kind are due and payable in connection herewith to
any broker, agent, commission salesperson, or other person as a result of any
act or agreement of Tenant. Tenant agrees to indemnify and hold Landlord
harmless from all loss, liability, damage, claim, judgment, cost or expense
(including reasonable attorneys' fees and court costs) suffered or incurred by
Landlord as a result of a breach by Tenant of the representation and warranty
contained in the immediately preceding sentence or as a result of Tenant's
failure to pay commissions, fees, or compensation due to any broker who
represented Tenant, whether or not disclosed, or as a result of any claim for
any fee, commission or similar compensation with respect to this Lease made by
any broker, agent or finder (other than the Broker[s] identified in Article 1[o]
hereinabove) claiming to have dealt with Tenant, whether or not such claim is
meritorious. Tenant shall cause any agent or broker representing Tenant to
execute a lien waiver to and for the benefit of Landlord, waiving any and all
lien rights with respect to the Building and Land which such agent or broker has
or might have under Georgia law.
49. Governing Law. The laws of the State of Georgia shall govern
the validity, performance and enforcement of this Lease.
50. Special Stipulations. The special stipulations attached hereto
as Exhibit "G" are hereby incorporated herein by this reference as though fully
set forth (if none, so state).
51. Authority. If Tenant executes this Lease as a corporation,
each of the persons executing this Lease on behalf of Tenant does hereby
personally represent and warrant that Tenant is a duly incorporated or a duly
qualified (if a foreign corporation) corporation and is fully authorized and
qualified to do business in the State in which the Demised Premises are
30
34
located, that the corporation has full right and authority to enter into this
Lease, and that each person signing on behalf of the corporation is an officer
of the corporation and is authorized to sign on behalf of the corporation. If
Tenant signs as a partnership, joint venture, or sole proprietorship or other
business entity (each being herein called "Entity"), each of the persons
executing on behalf of Tenant does hereby covenant and warrant that Tenant is a
duly authorized and existing Entity, that Tenant has full right and authority to
enter into this Lease, that all persons executing this Lease on behalf of the
Entity are authorized to do so on behalf of the Entity, and that such execution
is fully binding upon the Entity and its partners, joint venturers, or
principal, as the case may be. Upon the request of Landlord, Tenant shall
deliver to Landlord reasonable documentation satisfactory to Landlord evidencing
Tenant's compliance with this Article, and Tenant agrees to promptly execute all
necessary and reasonable applications or documents as reasonably requested by
Landlord, required by the jurisdiction in which the Demised Premises is located,
to permit the issuance of necessary permits and certificates for Tenant's use
and occupancy of the Demised Premises.
52. Financial Statements. Upon Landlord's written request
therefor, but not more often than once per year, Tenant shall promptly furnish
to Landlord a financial statement with respect to Tenant for its most recent
fiscal year prepared in accordance with generally accepted accounting principles
and certified to be true and correct by Tenant, which statement Landlord agrees
to keep confidential and not use except in connection with proposed sale or loan
transactions.
53. Joint and Several Liability. INTENTIONALLY DELETED.
54. ERISA Compliance. Tenant represents to Landlord that Tenant is
not an "employee benefit plan", a "plan" or a "governmental plan" as defined
below or an entity whose assets constitute "plan assets" as defined below. The
term "employee benefit plan" means an "employee benefit plan" as defined in
Section 3(3) of the Employment Retirement Income Security Act of 1974, as
amended ("ERISA"), which is subject to Title I of ERISA. The term "plan" means a
"plan" as defined in Section 4975(e)(i) of the Internal Revenue Code of 1986, as
amended. The term "governmental plan" means a "governmental plan" within the
meaning of Section 3(32) of ERISA. The term "plan assets" means "plan assets" of
one or more plans within the meaning of 2a C.F.R. 2510.3-101.
31
35
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
as of the day, month and year first above written.
"LANDLORD":
WILDWOOD ASSOCIATES,
a Georgia general partnership
By: Cousins Properties Incorporated,
Managing General Partner
By:
---------------------------------
Its:
---------------------------------
(CORPORATE SEAL)
"TENANT":
THE PROFIT RECOVERY GROUP INTERNATIONAL I,
INC.
By:
-------------------------------------
Its:
-------------------------------------
Attest:
-------------------------------------
Its:
-------------------------------------
(CORPORATE SEAL)
32
36
RULES AND REGULATIONS
1. No sign, picture, advertisement or notice visible from the exterior of
the Demised Premises shall be installed, affixed, inscribed, painted or
otherwise displayed by Tenant on any part of the Demised Premises or
the Building unless the same is first approved by Landlord. Any such
sign, picture, advertisement or notice approved by Landlord shall be
painted or installed for Tenant at Tenant's cost by Landlord or by a
party approved by Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed. No awnings, curtains, blinds, shades
or screens shall be attached to or hung in, or used in connection with
any window or door of the Demised Premises without the prior consent of
the Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed, including approval by the Landlord of the
quality, type, design, color and manner of attachment. In the event of
any breach of the foregoing, Landlord may remove the applicable item,
and Tenant agrees to pay the cost and expense of such removal.
2. Tenant agrees that its use of electrical current shall never exceed the
capacity of existing feeders, risers or wiring installation.
3. The Demised Premises shall not be used for storage of merchandise held
for sale to the general public. Tenant shall not do or permit to be
done in or about the Demised Premises or Building anything which shall
increase the rate of insurance on said Building or obstruct or
interfere with the rights of other lessees of Landlord or annoy them in
any way, including, but not limited to, using any musical instrument,
making loud or unseemly noises, or singing, etc. The Demised Premises
shall not be used for sleeping or lodging. No cooking or related
activities shall be done or permitted by Tenant in the Demised Premises
except with permission of Landlord. Tenant will be permitted to use for
its own employees within the Demised Premises a small microwave oven
and Underwriters' Laboratory approved equipment for brewing coffee,
tea, hot chocolate and similar beverages, provided that such use is in
accordance with all applicable federal, state, county and city laws,
codes, ordinances, rules and regulations, and provided that such use
shall not result in the emission of odors from the Demised Premises
into the common area of the Building. No vending machines of any kind
will be installed, permitted or used on any part of the Demised
Premises without the prior consent of Landlord, which approval shall
not be unreasonably withheld, conditioned or delayed. No part of said
Building or Demised Premises shall be used for gambling, immoral or
other unlawful purposes. No intoxicating beverage shall be sold in said
Building or Demised Premises without prior written consent of the
Landlord. No area outside of the Demised Premises shall be used for
storage purposes at any time.
4. No birds or animals of any kind shall be brought into the Building
(other than trained assist dogs required to be used by the visually
impaired). No bicycles, motorcycles or other motorized vehicles shall
be brought into the Building.
37
5. The sidewalks, entrances, passages, corridors, halls, elevators, and
stairways in the Building shall not be obstructed by Tenant or used for
any purposes other than those for which same were intended as ingress
and egress. No windows, floors or skylights that reflect or admit light
into the Building shall be covered or obstructed by Tenant, and no
articles shall be placed on the window ▇▇▇▇▇ of the Building. Toilets,
wash basins and sinks shall not be used for any purpose other than
those for which they were constructed, and no sweeping, rubbish, or
other obstructing or improper substances shall be thrown therein. Any
damage resulting to them, or to heating apparatus, from misuse by
Tenant or its employees, shall be borne by Tenant.
6. Only one key for each office in the Demised Premises will be furnished
Tenant without charge. Landlord may make a reasonable charge for any
additional keys. No additional lock, latch or bolt of any kind shall be
placed upon any door nor shall any changes be made in existing locks
without written consent of Landlord and Tenant shall in each such case
furnish Landlord with a key for any such lock. Notwithstanding anything
to the contrary contained herein, Landlord's use of any keys or
electronic access pass to the Demised Premises shall be coordinated
with Tenant (except in the case of emergency), and Landlord shall use
reasonable efforts to secure such keys or other access devices to
prevent unauthorized use of same. At the termination of the Lease,
Tenant shall return to Landlord all keys furnished to Tenant by
Landlord, or otherwise procured by Tenant, and in the event of loss of
any keys so furnished, Tenant shall pay to Landlord the cost thereof.
7. Landlord shall have the right to prescribe the weight, position and
manner of installation of heavy articles such as safes, machines and
other equipment brought into the Building. Tenant shall not allow the
building structure within the Demised Premises, nor shall Tenant cause
the elevators of the Building, to be loaded beyond rated capacities. No
safes, furniture, boxes, large parcels or other kind of freight shall
be taken to or from the Demised Premises or allowed in any elevator,
hall or corridor except at times allowed by Landlord. Tenant shall make
prior arrangements with Landlord for use of freight elevator for the
purpose of transporting such articles and such articles may be taken in
or out of said Building only between or during such hours as may be
arranged with and designated by Landlord. The persons employed to move
the same must be approved by Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed. Landlord reserves the
right to inspect and, where deemed appropriate by Landlord, to open all
freight coming into the Building and to exclude from entering the
Building all freight which is in violation of any of these Rules and
Regulations and all freight as to which inspection is not permitted. No
hand trucks shall be used in passenger elevators. All hand trucks used
by Tenant or its service providers for the delivery or receipt of any
freight shall be equipped with rubber tires.
2
38
8. Tenant shall not cause or permit any gases, liquids or odors to be
produced upon or permeate from the Demised Premises, and no flammable,
combustible or explosive fluid, chemical or substance shall be brought
into the Building. Smoking shall not be permitted in any common areas
of the Building or the Project or in any premises within the Building;
provided, however, smoking shall be permitted in any premises of the
Building where the tenant of such premises makes arrangements with
Landlord for the installation at such tenant's cost of filtration or
other equipment which in Landlord's judgment is adequate to prevent
smoke from leaving such premises and entering the common areas or other
premises of the Building. Until such approved equipment is installed,
smoking shall not be permitted in a tenant's premises. If Tenant shall
assert that the air quality in the Demised Premises is unsatisfactory
or if Tenant shall request any air quality testing within the Demised
Premises, Landlord may elect to cause its consultant to test the air
quality within the Demised Premises and to issue a report regarding
same. If the report from such tests indicates that the air quality
within the Demised Premises is comparable to the air quality of other
first-class office buildings in the market area of the Building, or if
the report from such tests indicates that the air quality does not meet
such standard as a result of the activities caused or permitted by
Tenant in the Demised Premises, Tenant shall reimburse Landlord for all
costs of the applicable tests and report. Additionally, in the event
Tenant shall cause or permit any activity which shall adversely affect
the air quality in the Demised Premises, in the common area of the
Building or in any premises within the Building, Tenant shall be
responsible for all costs of remedying same.
9. Every person, including Tenant, its employees and visitors, entering
and leaving the Building may be questioned by a watchman as to that
person's business therein and may be required to sign such person's
name on a form provided by Landlord for registering such person;
provided that, except for emergencies or other extraordinary
circumstances, such procedures shall not be required between the hours
of 7:00 a.m. and 7:00 p.m., on all days except Saturdays, Sundays and
Holidays. Landlord may also implement a card access security system to
control access to the Building during such other times. Landlord shall
not be liable for excluding any person from the Building during such
other times, or for admission of any person to the Building at any
time, or for damages or loss for theft resulting therefrom to any
person, including Tenant.
10. Unless agreed to in writing by Landlord, Tenant shall not employ any
person other than Landlord's contractors for the purpose of cleaning
and taking care of the Demised Premises, excluding those vendors used
by Tenant for security purposes. Cleaning service will not be furnished
on nights when rooms are occupied after 6:30 p.m., unless, by agreement
in writing, service is extended to a later hour for specifically
designated rooms. Landlord shall not be responsible for any loss,
theft, mysterious disappearance of or damage to, any property, however
occurring. Only persons authorized by the Landlord may furnish ice,
drinking water, towels, and other similar services within the Building
and only at hours and under regulations fixed by Landlord.
3
39
11. No connection shall be made to the electric wires or gas or electric
fixtures, without the consent in writing on each occasion of Landlord.
All glass, locks and trimmings in or upon the doors and windows of the
Demised Premises shall be kept whole and in good repair. Tenant shall
not injure, overload or deface the Building, the woodwork or the walls
of the Demised Premises, nor permit upon the Demised Premises any
noisome, noxious, noisy or offensive business.
12. If Tenant requires wiring for a ▇▇▇▇ or buzzer system, such wiring
shall be done by the electrician of the Landlord only, and no outside
wiring men shall be allowed to do work of this kind unless by the
written permission of Landlord or its representatives, which permission
shall not be unreasonably withheld, conditioned or delayed. If
telegraph or telephonic service is desired, the wiring for same shall
be approved by Landlord, and no boring or cutting for wiring shall be
done unless approved by Landlord or its representatives, as stated. The
electric current shall not be used for power or heating unless written
permission to do so shall first have been obtained from Landlord or its
representatives in writing, and at an agreed cost to Tenant.
13. Tenant and its employees and invitees shall observe and obey all
parking and traffic regulations as imposed by Landlord. All vehicles
shall be parked only in areas designated therefor by Landlord.
14. Canvassing, peddling, soliciting and distribution of handbills or any
other written materials in the Building are prohibited, and Tenant
shall cooperate to prevent the same.
15. Tenant agrees to participate in the waste recycling programs
implemented by Landlord for the Building, including any programs and
procedures for recycling writing paper, computer paper, shipping paper,
boxes, newspapers and magazines and aluminum cans; provided, however,
Tenant shall not be obligated to participate in any such program which,
in Tenant's reasonable judgment, compromises its internal security, or
is necessary to prevent disclosure of its trade secrets or other
proprietary information. If Landlord elects to provide collection
receptacles for recyclable paper and/or recyclable aluminum cans in the
Demised Premises, Tenant shall designate an appropriate place within
the Demised Premises for placement thereof, and Tenant shall cause its
employees to place their recyclable papers and/or cans into the
applicable such receptacles on a daily basis.
16. Any special work or services requested by Tenant to be provided by
Landlord shall be provided by Landlord only upon request received at
the Project management office. Building personnel shall not perform any
work or provide any services outside of their regular duties unless
special instructions have been issued from Landlord or its managing
agent.
17. Landlord shall have the right to change the name of the Building and to
change the street address of the Building, provided that in the case of
a change in the street address,
4
40
Landlord shall give Tenant not less than 180 days' prior notice of the
change, unless the change is required by governmental authority.
18. The directory of the Building will be provided for the display of the
name and location of the tenants. Any additional name which Tenant
shall desire to place upon said directory must first be approved by
Landlord, and if so approved, a reasonable charge will be made
therefor.
19. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular lessee, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor
of any other lessee, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the other lessees of
the Building.
20. These Rules and Regulations are supplemental to, and shall not be
construed to in any way modify or amend, in whole or in part, the
terms, covenants, agreements and conditions of any lease of any
premises in the Building.
21. Landlord reserves the right to make such other and reasonable uniform,
non-discriminatory Rules and Regulations as in its judgment may from
time to time be needed for the safety, care and cleanliness of the
Building, the Land and Wildwood Office Park, and for the preservation
of good order therein.
5
41
EXHIBIT "A"
Legal Description of Land
42
EXHIBIT "B"
Floor Plan
43
EXHIBIT "C"
SUPPLEMENTAL NOTICE
Re: Lease dated as of _________, 1998, by and between WILDWOOD
ASSOCIATES, as Landlord, and THE PROFIT RECOVERY GROUP
INTERNATIONAL I, INC., as Tenant.
Dear Sirs:
Pursuant to Article 3 of the captioned Lease, please be advised as
follows:
1. The Rental Commencement Date is the__ day of__ , 199__, and
the expiration date of the Lease Term is the__ day of , _____, subject however
to the terms and provisions of the Lease.
2. Terms denoted herein by initial capitalization shall have the
meanings ascribed thereto in the Lease.
"LANDLORD":
WILDWOOD ASSOCIATES,
a Georgia general partnership
By: Cousins Properties Incorporated,
Managing General Partner
By:
----------------------------------
Its:
----------------------------------
(CORPORATE SEAL)
44
EXHIBIT "D"
CONSTRUCTION
Tenant is taking the Demised Premises in its "as is" condition.
Landlord has no obligation to provide any work therein or any allowance
therefor.
45
EXHIBIT "E"
BUILDING STANDARD SERVICES
Landlord shall furnish the following services to Tenant during the
Lease Term (the "Building Standard Services"):
(a) Common-use restrooms (with cold and tempered domestic water)
and toilets at locations provided for general use and as reasonably deemed by
Landlord to be in keeping with the first-class standards of the Building.
(b) Subject to curtailment as required by governmental laws, rules
or mandatory regulations and subject to the design conditions set forth in
paragraph 2(a) of Exhibit "D" attached hereto, central heat and air conditioning
in season, at such temperatures and in such amounts as are reasonably deemed by
Landlord to be in keeping with the first-class standards of the Building. Such
heating and air conditioning shall be furnished between 8:00 a.m. and 6:00 p.m.
on weekdays (from Monday through Friday, inclusive) and between 8:00 a.m. and
1:00 p.m. on Saturdays, all exclusive of Holidays, as defined below (the
"Building Operating Hours").
(c) Electric lighting service for all public areas and special
service areas of the Building in the manner and to the extent reasonably deemed
by Landlord to be in keeping with the first-class standards of the Building.
(d) Janitor service shall be provided five (5) days per week,
exclusive of Holidays (as hereinbelow defined), in a manner that Landlord
reasonably deems to be consistent with the first-class standards of the
Building.
(e) Security services for the Building comparable as to coverage,
control and responsiveness (but not necessarily as to means for accomplishing
same) to other similarly sized first-class, multi-tenant office buildings in
suburban Atlanta, Georgia; provided, however, Landlord shall have no
responsibility to prevent, and shall not be liable to Tenant for, any liability
or loss to Tenant, its 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 Building and/or the Demised Premises, and Tenant hereby
releases Landlord from all liability for such losses, damages or injury.
(f) Sufficient electrical capacity at the building core electrical
panels to operate (i) incandescent lights, typewriters, calculating machines,
photocopying machines and other machines of the same 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
1.54 ▇▇▇▇▇ per square foot of rentable area; and (ii) lighting (277/480 volts),
provided that the total rated electrical design load for said lighting shall not
exceed 2.0 ▇▇▇▇▇ per square foot of
46
rentable area (each such rated electrical design load to be hereinafter referred
to as the "Building Standard Rated Electrical Design Load").
Should Tenant's total rated electrical design load exceed the Building
Standard Rated Electrical Design Load for either low or high voltage electrical
consumption, or if Tenant's electrical design requires low voltage or high
voltage circuits in excess of Tenant's share of the Building Standard circuits,
Landlord will (at Tenant's expense) install such additional circuits and
associated high voltage panels and/or additional low voltage panels with
associated transformers (which additional circuits, 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 the electricity used through the Additional Electrical
Equipment.
The design and installation of any Additional Electrical Equipment (or
any related meter) required by Tenant shall be subject to the prior approval of
Landlord (which approval shall not be unreasonably withheld). All 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 on demand 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.
Tenant agrees that if Tenant uses data processing or other electronic
equipment which incorporates the use of switched mode power supplies or any
other type device causing harmonic distortion on Landlord's power distribution
system, Tenant shall install filters at Tenant's cost to eliminate the harmonic
distortion. In addition, any damage to Landlord's equipment resulting from
harmonic distortion caused by Tenant's electronic equipment shall be repaired at
Tenant's expense. Total harmonic distortion shall not exceed thirteen percent
(13%).
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.
If Tenant requires that certain areas within Tenant's Demised Premises
must operate in excess of the normal Building Operating Hours (as hereinabove
defined), the electrical service to such areas shall be separately circuited and
metered (at Tenant's expense) such that Tenant shall be billed the costs
associated with electricity consumed during hours other than Building Operating
Hours.
(g) All Building Standard fluorescent bulb replacement in all
areas and all incandescent bulb replacement in public areas, toilet and restroom
areas, and stairwells.
(h) Non-exclusive multiple cab passenger service to the floor(s)
of the Demised Premises during Building Operating Hours (as hereinabove defined)
and at least one (1) cab
2
47
passenger service to the floor(s) on which the Demised Premises are located
twenty-four (24) hours per day and non-exclusive freight elevator service during
Building Operating Hours (all subject to temporary cessation for ordinary repair
and maintenance and during times when life safety systems override normal
building operating systems) with such freight elevator service available at
other times upon reasonable prior notice and the payment by Tenant to Landlord
of any additional expense actually incurred by Landlord in connection therewith.
To the extent the services described above require electricity and
water supplied by public utilities, Landlord's covenants thereunder shall only
impose on Landlord the obligation to use its reasonable efforts to cause the
applicable public utilities to furnish same. Except for deliberate and willful
acts of Landlord, failure by Landlord to furnish the services described herein,
or any cessation thereof, shall not render Landlord liable for damages to either
person or property, nor be construed as an eviction of Tenant, nor work an
abatement of rent, nor relieve Tenant from fulfillment of any covenant or
agreement hereof. In addition to the foregoing, should any of the equipment or
machinery, for any cause, fail to operate, or function properly, Tenant shall
have no claim for rebate of rent or damages on account of an interruption in
service occasioned thereby or resulting therefrom; provided, however, Landlord
agrees to use reasonable efforts to promptly repair said equipment or machinery
and to restore said services during normal business hours.
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;
(b) the loss of service is the result of a cause within Landlord's
control;
(c) 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;
(d) Tenant must give written notice promptly to Landlord of the
loss of service and its claim for abatement under this
provision and, Tenant shall be entitled to abatement of Rent,
assuming all other conditions of this provision are satisfied,
commencing on the day such service is curtailed, provided that
if such service is restored or replaced within eight (8)
business days of Landlord's receipt of such notice, then
Tenant shall not be entitled to any such abatement; and
(e) 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.
The following dates shall constitute "Holidays" as that term is used in
this Lease: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas, and any other holiday generally recognized as such
by landlords of office space in the metropolitan
3
48
Atlanta office market, as determined by Landlord in good faith. If in the case
of any specific holiday mentioned in the preceding sentence, a different day
shall be observed than the respective day mentioned, then that day which
constitutes the day observed by national banks in Atlanta, Georgia on account of
said holiday shall constitute the Holiday under this Lease.
4
49
EXHIBIT "F"
GUARANTY
INTENTIONALLY OMITTED
50
EXHIBIT "G"
Special Stipulations
1. Cross Default. Any event of default on the part of The Profit Recovery
Group International I, Inc. ("P-I") (an affiliate of Tenant) under the
certain Lease Agreement, dated January 30, 1998, involving Landlord and
P-I, shall, at Landlord's option and in Landlord's sole discretion, be
an event of default on the part of Tenant under this Lease.
2. Renewal Option. Provided that this Lease is then in effect, no Event of
Default under this Lease then exists and there is no sublease of any
portion of the Demised Premises or assignment of Tenant's interest
under this Lease, and otherwise subject to the terms herein set forth,
Tenant shall have the option to extend the Lease Term for one (1)
period of five (5) years (the "Extended Term"). Such option shall be
exercised by written notice to Landlord given on or before the date
which is twelve (12) months prior to the expiration of the initial
Lease Term, and such notice shall be irrevocable. The Extended Term
shall be upon the same covenants, agreements, terms, provisions and
conditions that are contained herein for the initial Lease Term, as the
same shall then be in effect hereunder, and the Base Rental Rate for
the first (1st) year of such five (5) year period shall initially be
$19.50 per square foot of Rentable Floor Area per annum, such Base
Rental Rate increasing annually in the manner set forth in Article 7 of
the Lease; provided, however, in no event shall the Base Rental Rate
increase by in excess of three percent (3%) per annum. If Tenant fails
to timely give such notice, the Renewal Option shall be deemed
terminated.
3. Parking. Tenant shall have the right to use up to ten (10) reserved
parking spaces in parking facilities for the Building, without any
additional out-of-pocket charge due from Tenant. Such reserved parking
spaces will be in an area as Landlord elects, and which Landlord may
relocate, all in Landlord's sole discretion. Such reserved parking
spaces will be marked by such designation as Landlord reasonably
selects.
4. Possible Expansion of Demised Premises. Provided this Lease is then in
full force and effect and Tenant is in full compliance with the terms
and conditions of this Lease, and there is no sublease of any portion
of the Premises or assignment of any of Tenant's interest in the Lease,
Landlord hereby grants Tenant the right to lease any other "available"
space in the Building. For the purposes of this Lease, "available
space" shall mean space that is unleased, unoccupied, and unencumbered
by an option, expansion right, refusal right or the like (the
"Expansion Space"), at a rate and upon such other terms as Landlord
shall indicate in a notice to Tenant. Landlord shall use its reasonable
efforts to provide Tenant with notice when Expansion Space becomes
available; provided, however, that a failure by Landlord to provide
notice to Tenant of the availability of any Expansion Space shall not
be a default on the part of Landlord hereunder. Tenant shall have
fifteen (15) days after Landlord notifies Tenant of any Expansion Space
available, to accept or reject such offer. To accept such offer, Tenant
must elect to lease all of the Expansion Space then offered to
51
Tenant. If Tenant rejects such offer or fails to respond within said
fifteen (15) day period, then Landlord shall be entitled to rent said
space to a third party, and Tenant shall have no further rights to the
Expansion Space in question. If Tenant accepts said offer, then Tenant
shall have leased such space upon the terms contained in said offer.
The Rent for said Expansion Space shall commence on the earlier to
occur of (i) sixty (60) days after such Expansion Space first becomes
available so that tenant fit-up and finish work can commence therein,
or (ii) on the date Tenant occupies said Expansion Space. Such space,
if any is available, shall be leased on such terms as Landlord and
Tenant may agree, but there is no guaranty that such space shall be
available at all, or on terms that Tenant may find acceptable. Attached
to this Lease as Exhibit "H", for Tenant's information, is a list of
when certain leases in the Building are currently scheduled to expire.
However, all or any of such leases may have renewal rights or
opportunities, which would alter the availability of such space, and
Landlord makes no representation herein as to the availability of such
space.
5. Signage. (a) Tenant shall have the right to up to eight (8) directory
strips, on the Building's directory. The cost of such strips shall be
at Tenant's expense.
(b) Tenant shall have the right to place and maintain, at
Tenant's expense, Tenant's own signage on any floor which Tenant leases
and occupies in its entirety.
(c) If Landlord elects to erect a Building monument sign
for and to identify multiple tenants (which Landlord has no obligation
to do), then Landlord shall provide Tenant (but no assignee or
sublessee of Tenant) with the opportunity to identify Tenant on such a
sign, at Tenant's sole cost and expense.
2