EXHIBIT 10.1
PROMINENCE IN BUCKHEAD
ATLANTA, GEORGIA
STANDARD FORM OFFICE LEASE
BETWEEN
EOP-BUCKHEAD, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
VIEWLOCITY, INC., A DELAWARE CORPORATION ("TENANT")
TABLE OF CONTENTS
I. BASIC LEASE INFORMATION; DEFINITIONS..................................1
II. LEASE GRANT...........................................................5
III. POSSESSION; TERMINATION OPTION FOR LATE DELIVERY......................5
IV. RENT..................................................................7
V. USE..................................................................15
VI. SECURITY DEPOSIT.....................................................15
VII. SERVICES TO BE FURNISHED BY LANDLORD.................................16
VIII. LEASEHOLD IMPROVEMENTS...............................................17
IX. GRAPHICS.............................................................18
X. REPAIRS AND ALTERATIONS..............................................18
XI. USE OF ELECTRICAL SERVICES BY TENANT.................................19
XII. ENTRY BY LANDLORD....................................................20
XIII. ASSIGNMENT AND SUBLETTING............................................21
XIV. LIENS................................................................22
XV. INDEMNITY AND WAIVER OF CLAIMS.......................................23
XVI. TENANT'S INSURANCE...................................................24
XVII. SUBROGATION..........................................................25
XVIII. LANDLORD'S INSURANCE.................................................25
XIX. CASUALTY DAMAGE......................................................25
XX. DEMOLITION...........................................................27
XXI. CONDEMNATION.........................................................27
XXII. EVENTS OF DEFAULT....................................................27
XXIII. REMEDIES.............................................................28
XXIV. LIMITATION OF LIABILITY..............................................30
XXV. NO WAIVER............................................................30
XXVI. EVENT OF BANKRUPTCY..................................................30
XXVII. WAIVER OF JURY TRIAL.................................................32
XXVIII. RELOCATION...........................................................32
XXIX. HOLDING OVER.........................................................32
XXX. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.....................33
XXXI. ATTORNEYS'FEES.......................................................33
XXXII. NOTICE...............................................................33
XXXIII. LANDLORD'S LIEN......................................................34
XXXIV. EXCEPTED RIGHTS......................................................34
XXXV. SURRENDER OF PREMISES................................................34
XXXVI. MISCELLANEOUS........................................................34
XXXVII. ENTIRE AGREEMENT.....................................................36
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OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as
of the 5th day of November, 1999, by and between EOP-BUCKHEAD, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and VIEWLOCITY, INC., A
DELAWARE CORPORATION ("Tenant").
I. BASIC LEASE INFORMATION; DEFINITIONS.
A. The following are some of the basic lease information and defined
terms used in this Lease.
1. "Additional Base Rental" shall mean Tenant's Pro Rata Share
of Basic Costs and any other sums (exclusive of Base
Rental) that are required to be paid by Tenant to Landlord
hereunder, which sums are deemed to be additional rent
under this Lease. Additional Base Rental and Base Rental
are sometimes collectively referred to herein as "Rent".
2. "Base Rental" shall be payable by Tenant to Landlord in one
hundred twenty (120) monthly installments as follows:
--------------------------- ---------------- --------------------- ---------------- ---------------
PERIOD IN RSF FOR ANNUAL RATE BASE RENTAL MONTHLY
LEASE TERM BASE RENTAL PER SQUARE FOOT FOR PERIOD BASE RENTAL
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
10/15/99 - 10/31/99 15,000 $27.50 $18,850.79 $18,850.798
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
11/01/99 - 2/29/00 15,000 $27.50 $137,500.00 $34,375.00
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
3/01/00 - 5/31/00 19,413 $27.50 $133,464.39 $44,488.13
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
6/01/00 - 10/31/00 23,827 $27.50 $273,017.70 $54,603.54
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
11/01/00 - 10/31/01 23,827 $28.33 $675,018.96 $56,251.58
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
11/01/01 - 10/31/02 23,827 $29.18 $695,271.84 $57,939.32
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
11/01/02 - 10/31/03 23,827 $30.05 $716,001.36 $59,666.78
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
11/01/03 - 10/31/04 23,827 $30.95 $737,445.60 $61,453.80
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
11/01/04 - 10/31/05 23,827 $31.88 $759,604.80 $63,300.40
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
11/01/05 - 10/31/06 23,827 $32.84 $782,478.72 $65,206.56
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
11/01/06 - 10/31/07 23,827 $33.83 $806,067.36 $67,172.28
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
11/01/07 - 10/31/08 23,827 $34.84 $830,132.64 $69,177.72
--------------------------- ---------------- --------------------- ---------------- ---------------
--------------------------- ---------------- --------------------- ---------------- ---------------
11/01/08 - 10/31/09 23,827 $35.89 $855,151.08 $71,262.59
--------------------------- ---------------- --------------------- ---------------- ---------------
3. "Building" shall mean the office building (sometimes
referred to herein as the "Phase I Building") at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇▇▇▇, City
of Atlanta, State of Georgia, commonly known as Prominence
in Buckhead and, at Landlord's option, shall include any
other office building to be constructed or acquired by
Landlord on the parcel of land located adjacent to the land
on which the Phase I Building is to be constructed
(sometimes referred to herein as the "Phase II Building").
4. The "Commencement Date," "Lease Term" and "Termination
Date" shall have the meanings set forth below:
a. The "Lease Term" shall mean a period of one hundred
twenty (120) months and seventeen (17) days
commencing on October 15, 1999 (the "Commencement
Date") and, unless sooner terminated as provided
herein, ending on October 31, 2009 (the "Termination
Date").
b. Intentionally Omitted.
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5. The "Premises" shall mean the area to be located on the
17th floor of the Building, as generally outlined on
EXHIBIT A attached hereto. The Premises shall be known as
Suite No. 1700. It is acknowledged by the parties that
Landlord has not named any of the floors in the Building as
the "13th" floor and, therefore, the 12th and 14th floors
are actually contiguous to one another and there is no
intervening floor between them. (If a 13th floor were
named, then the Premises would be located on the 16th
floor.)
Landlord and Tenant hereby stipulate and agree that (i) the
"Rentable Area of the Premises shall mean 23,827 square
feet; and (ii) the "Rentable Area of the Building" shall
mean 424,635 square feet. If the Premises being leased to
Tenant hereunder include one or more floors within the
Building in their entirety, the definition of Premises with
respect to such full floor(s) shall include all corridors
and restroom facilities located on such floor(s).
Notwithstanding the foregoing, unless specifically provided
herein to the contrary and except for purposes of
calculating the Rentable Area of the Premises, the Premises
shall not include any telephone closets, electrical
closets, janitorial closets, equipment rooms or similar
areas on any full or partial floor that are used by
Landlord for the operation of the Building. However, if
Landlord acquires or constructs the Phase II Building and
elects to include the Phase II Building within the
definition of "Building" as provided in Section I.A.3. as
described above, then the Rentable Area of the Building and
Tenant's Pro Rata Share shall be appropriately adjusted by
Landlord.
6. "Permitted Use" shall mean general office use.
7. "Security Deposit" shall mean $1,212,468.06 in the form of
a letter of credit, as more fully described in Article VI.
8. "Tenant's Pro Rata Share" shall mean 5.6112%, which is the
quotient (expressed as a percentage), derived by dividing
the Rentable Area of Premises by the Rentable Area of the
Building.
9. "Guarantor(s)" NONE.
10. "Notice Addresses" shall mean the following addresses for
Tenant and Landlord, respectively:
Tenant:
On and after the Commencement Date, notices shall be sent
to Tenant at the Premises.
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Prior to the Commencement Date, notices shall be sent to
Tenant at the following address:
Viewlocity, Inc.
c/o Frontec Amt
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: _________________________
With a copy of any notices whereby Landlord is asserting a
claim or defense against the Tenant based upon the subject
matter of the notice (as opposed to routine notices
concerning the operation of the Building) to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
First ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Landlord:
EOP-Buckhead, L.L.C.
c/o Equity Office Properties Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Building Manager
With a copy to:
Equity Office Properties Trust
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Regional Counsel - Southeast
Payments of Rent only shall be made payable to the order
of:
EQUITY OFFICE PROPERTIES
at the following address:
Equity Office Properties
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
B. The following are additional definitions of some of the defined
terms used in the Lease.
1. "Base Year" with respect to Taxes and Expenses shall mean
the calendar year 2000.
a. "Tax Base Amount" shall mean Taxes for the Base
Year, per rentable square foot, multiplied by the
Rentable Area of the Building.
b. "Expense Base Amount" shall mean Expenses for the
Base Year, per rentable square foot, multiplied by
the Rentable Area of the Building. For purposes of
this Section I.B.1. and Article IV, "Expenses" shall
mean all Basic Costs with the exception of Taxes. In
determining the Expense Base Amount under this
subsection I.B.1.(b), Expenses for the Base Year
shall be determined as if the Building had been
ninety-five percent (95%)
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occupied and Landlord had been supplying services to
ninety-five percent (95%) of the Rentable Area of
the Building during such year. Such extrapolation of
Expenses shall be performed in the manner described
in Section IV.B.
If the Phase II Building is included in the
definition of "Building", as provided in Section
I.A.3. as described above, then, at such time, the
Tax Base Amount and the Expense Base Amount
described above shall be adjusted to include the
additional rentable square footage included in the
Phase II Building.
2. "Basic Costs" shall mean all costs and expenses paid or
incurred in connection with operating, maintaining,
repairing, managing and owning the Building and the
Property, as further described in Article IV hereof.
3. "Broker" means, collectively, (a) Insignia/ESG, Inc.
("Tenant's Broker") and (b) Holder Properties, Inc. and the
in-house leasing representatives of Equity Office
Properties (collectively, the "Landlord's Broker").
4. "Building Standard" shall mean the type, grade, brand,
quality and/or quantity of materials Landlord designates
from time to time to be the minimum quality and/or quantity
to be used in the Building.
5. "Business Day(s)" shall mean Mondays through Fridays
exclusive of the normal business holidays ("Holidays") of
New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day. Landlord, from time to
time during the Lease Term, shall have the right to
designate additional Holidays, provided that such
additional Holidays are commonly recognized by other office
buildings in the area where the Building is located.
6. "Common Areas" shall mean those areas provided for the
common use or benefit of all tenants generally and/or the
public, such as corridors, elevator foyers, common mail
rooms, restrooms, vending areas, lobby areas (whether at
ground level or otherwise) and other similar facilities.
7. "Landlord Work" shall mean the work, if any, that Landlord
is obligated to perform in the Premises pursuant to the
Work Letter Agreement, if any, attached hereto as EXHIBIT
D.
8. "Maximum Rate" shall mean the greatest per annum rate of
interest permitted from time to time under applicable law.
9. "Normal Business Hours" for the Building shall mean 8:00
A.M. to 6:00 P.M. Mondays through Fridays, and 8:00 A.M. to
1:00 P.M. on Saturdays, exclusive of Holidays.
10. "Prime Rate" shall mean the per annum interest rate
publicly announced by The First National Bank of Chicago or
any successor thereof from time to time (whether or not
charged in each instance) as its prime or base rate in
Chicago, Illinois.
11. "Property" shall mean the Phase I Building and the
parcel(s) of land on which it is located and, at Landlord's
discretion, the Building garage, if any, and all other
improvements owned by Landlord and serving the Phase I
Building and the tenants thereof and the parcel(s) of land
on which they are located. If the definition of "Building"
also includes the Phase II Building as provided in Section
I.A.3. above, then, at Landlord's option, the "Property"
shall also include the Phase II Building and the parcel(s)
of land on which it is located and, at Landlord's
discretion, the Building garage, if any, and all other
improvements owned by Landlord and serving the Phase II
Building and the tenants thereof and the parcel(s) of land
on which they are located.
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12. "Law(s)" means all applicable statutes, codes, ordinances,
orders, rules and regulations of any municipal or
governmental entity.
II. LEASE GRANT.
Subject to and upon the terms herein set forth, Landlord leases to Tenant
and Tenant leases from Landlord the Premises, together with the right, in common
with others, to use the Common Areas.
III. POSSESSION; RENT CREDIT AND TERMINATION OPTION FOR LATE DELIVERY.
A. DETERMINATION OF SUBSTANTIAL COMPLETION DATE; RENT CREDIT AND
TERMINATION OPTION.
1. RENT CREDIT. The Commencement Date shall not be postponed
if the Landlord Work in the Premises is not substantially
completed as of the Commencement Date. (The date that the
Landlord Work in the Premises is substantially completed,
as described in Subsection 4 below, is defined as the
"Substantial Completion Date"). However, if the Substantial
Completion Date has not occurred on or before ninety (90)
days after the later of (a) the date the final Plans (as
defined in EXHIBIT D) have been approved by Landlord and
Tenant and (b) the date that Tenant executes and delivers
this Lease and all prepaid rent and security deposits
required hereunder to Landlord (the date which is 90 days
after the later of the dates described in (a) and (b) above
is referred to herein as the "Credit Completion Date"),
then, following the Substantial Completion Date, Tenant
shall be entitled to a rent abatement equal to one day of
Base Rental (at the daily rate payable during the first
month of the Lease Term) for every day in the period
beginning on the Credit Completion Date and ending on the
Substantial Completion Date. Landlord and Tenant
acknowledge and agree that the Credit Completion Date shall
be postponed by the number of days the Substantial
Completion Date is delayed due to events of Force Majeure.
Further, if Landlord shall be delayed in substantially
completing the Landlord Work in the Premises as a result of
any Tenant Delays (defined in Subsection 3 below), then,
for purposes of determining the Substantial Completion
Date, the date of substantial completion of the Landlord
Work in the Premises shall be deemed to be the day that
said Landlord Work would have been substantially completed
absent any such Tenant Delay(s).
2. TERMINATION OPTION. If the Substantial Completion Date has
not occurred on or before the date which is 120 days after
the Commencement Date (the "Outside Completion Date"), then
Tenant, as its sole remedy, may terminate this Lease by
giving Landlord written notice of termination on or before
the earlier to occur of: (i) five (5) Business Days after
the Outside Completion Date; and (ii) the Substantial
Completion Date. In such event, this Lease shall be deemed
null and void and of no further force and effect and, so
long as Tenant has not previously defaulted under any of
its obligations under the Work Letter, Landlord shall
return the Security Deposit to Tenant as described in this
Lease, Landlord shall reimburse to Tenant any Base Rental
and Tenant's Pro Rata Share of Taxes and Operating Expenses
paid by Tenant for the period commencing as of the
Commencement Date through the date of termination described
above for any portion of the Premises not occupied by
Tenant during such period, and the parties hereto shall
have no further responsibilities or obligations to each
other with respect to this Lease. Landlord and Tenant
acknowledge and agree that the Outside Completion Date
shall be postponed by the number of days the Substantial
Completion Date is delayed due to events of Force Majeure.
Further, if Landlord shall be delayed in substantially
completing
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the Landlord Work in the Premises as a result of any Tenant
Delays (defined below), then, for purposes of determining
the Substantial Completion Date, the date of substantial
completion of the Landlord Work in the Premises shall be
deemed to be the day that said Landlord Work would have
been substantially completed absent any such Tenant
Delay(s) . Notwithstanding anything herein to the contrary,
if Landlord determines that it will be unable to cause the
Substantial Completion Date to occur by the Outside
Completion Date, Landlord shall have the right to
immediately cease its performance of the Landlord Work and
provide Tenant with written notice (the "Outside Extension
Notice") of such inability, which Outside Extension Notice
shall set forth the date on which Landlord reasonably
believes that the Substantial Completion Date will occur.
Upon receipt of the Outside Extension Notice, Tenant shall
have the right to terminate this Lease by providing written
notice of termination to Landlord within five (5) Business
Days after the date of the Outside Extension Notice. If
Tenant does not terminate this Lease within such five (5)
Business Day period, the Outside Completion Date shall
automatically be amended to be the date set forth in
Landlord's Outside Extension Notice.
3. TENANT DELAYS. "Tenant Delay" means any act or omission of
Tenant or its agents, employees, vendors or contractors
that actually delays the substantial completion of the
Landlord Work, including, without limitation: (1) Tenant's
failure to furnish information or approvals within any time
period specified in this Lease, including the failure to
prepare or approve preliminary or final plans by any
applicable due date; (2) Tenant's selection of equipment or
materials that have long lead times after first being
informed by Landlord that the selection may result in a
delay; (3) changes requested or made by Tenant to
previously approved plans and specifications; (4)
performance of work in the Premises by Tenant or Tenant's
contractor(s) during the performance of the Landlord Work;
(5) if the performance of any portion of the Landlord Work
depends on the prior or simultaneous performance of work by
Tenant, a delay by Tenant or Tenant's contractor(s) in the
completion of such work; or (6) Tenant's failure to comply
with the time periods reflected on the Critical Date
Schedule attached hereto as EXHIBIT G. Landlord shall use
reasonable efforts to notify Tenant of any circumstances of
which Landlord is aware that have caused or may cause a
Tenant Delay, so that Tenant may take whatever action is
appropriate to minimize or prevent such Tenant Delay. The
Critical Date Schedule is included only as a guideline as
to the dates that must be complied with in order for the
Landlord Work to be substantially completed as of the
Commencement Date and, except as specifically described in
this Section III.A., shall not modify this Section III.A.
in any manner.
4. SUBSTANTIAL COMPLETION OF LANDLORD WORK. The Landlord Work
in the Premises shall be deemed to be substantially
completed on the later of (i) the date that Landlord
reasonably determines that all Landlord's Work in the
Premises has been performed (or would have been performed
absent any Tenant Delays), other than any details of
construction, mechanical adjustment or any other matter,
the noncompletion of which does not materially interfere
with Tenant's use of the Premises or (ii) the date Landlord
receives all governmental approvals which are required to
obtain a temporary or permanent certificate of occupancy
for the Premises from the local governmental authority (or
would have been received absent any Tenant Delays).
Tenant's right to terminate this Lease as described above
shall be Tenant's sole remedy and shall constitute full
settlement of all claims that Tenant might otherwise have
against Landlord by reason of the Substantial Completion
Date not occurring on or before the Outside Completion
Date.
B. By taking possession of the Premises, Tenant is deemed to have
accepted the Premises and agreed that the Premises is in good
order and satisfactory condition, with no representation or
warranty by Landlord as to the condition of the Premises or the
Building or suitability thereof for Tenant's use. Notwithstanding
the foregoing, Tenant's acceptance of the Premises shall be
subject to Landlord's obligation to correct portions of the
Landlord Work as set forth on a construction punch list prepared
by Landlord and Tenant in accordance with the terms hereof. Within
fifteen (15) days after the substantial completion of the Landlord
Work in the Premises, Landlord and Tenant shall together conduct
an
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inspection of such portion of the Premises and prepare a "punch
list" setting forth any portions of the Landlord Work that are not
in conformity with the Landlord Work as required by the terms of
this Lease. Notwithstanding the foregoing, at the request of
Landlord, such construction punch list shall be mutually prepared
by Landlord and Tenant prior to the date on which Tenant first
begins to move its furniture, equipment or other personal property
into the Premises. Landlord, as part of the Landlord Work, shall
use good faith efforts to correct all such items within a
reasonable time following the completion of the punch list.
Notwithstanding anything contained herein to the contrary, Tenant
shall have eleven (11) months from the completion of Landlord Work
in the Premises in which to discover and notify Landlord of any
latent defects in Landlord's Work in such portion of the Premises.
Landlord shall be responsible for the correction of any latent
defects with respect to which it received timely notice from
Tenant.
C. Notwithstanding anything to the contrary contained in the Lease,
Landlord shall not be obligated to tender possession of any
portion of any other space leased by Tenant from time to time
hereunder (exclusive of the initial Premises) that, on the date
possession is to be delivered, is occupied by a tenant or other
occupant or that is subject to the rights of any other tenant or
occupant, nor shall Landlord have any other obligations to Tenant
under this Lease with respect to such space until the date
Landlord: (1) recaptures such space from such existing tenant or
occupant; and (2) regains the legal right to possession thereof.
This Lease shall not be affected by any such failure to deliver
possession and Tenant shall have no claim for damages against
Landlord as a result thereof, all of which are hereby waived and
released by Tenant. The Commencement Date and Termination Date
shall be determined as provided in Section III.A. above.
D. If Tenant takes possession of the Premises prior to the
Commencement Date for any purpose (including for purposes of
installing furniture or equipment or conducting business
operations therein), such possession shall be subject to all the
terms and conditions of the Lease and Tenant shall pay Additional
Base Rental (but not Base Rental) for such portion of the Premises
to Landlord for each day of occupancy prior to the Commencement
Date. Tenant shall, however, be liable for the cost of any
services (e.g. electricity, HVAC, freight elevators) that are
provided to Tenant or the Premises during the period of Tenant's
possession prior to the Commencement Date. Nothing herein shall be
construed as granting Tenant the right to take possession of any
portion of the Premises prior to the Commencement Date, whether
for construction, fixturing or any other purpose, without the
prior consent of Landlord.
IV. RENT.
A. During each calendar year, or portion thereof, falling within the
Lease Term, Tenant shall pay to Landlord as Additional Base Rental
hereunder the sum of (1) Tenant's Pro Rata Share of the amount, if
any, by which Taxes (hereinafter defined) for the applicable
calendar year exceed the Tax Base Amount plus (2) Tenant's Pro
Rata Share of the amount, if any, by which Expenses for the
applicable calendar year exceed the Expense Base Amount. Tenant's
Pro Rata Share of increases in Taxes and Tenant's Pro Rata Share
of increases in Expenses shall be computed separate and
independent of each other prior to being added together to
determine the "Excess". In the event that Taxes and/or Expenses,
as the case may be, in any calendar year decrease below the amount
of the Tax Base Amount or the Expense Base Amount, as applicable,
Tenant's Pro Rata Share of Taxes and/or Tenant's Pro Rata Share of
Expenses, as the case may be, for such calendar year shall be
deemed to be $0, it being understood that Tenant shall not be
entitled to any credit or offset if Taxes decrease below the Tax
Base Amount or if Expenses decrease below the Expense Base Amount.
Prior to January 1 of the calendar year immediately following the
Base Year, and prior to January 1 of each subsequent calendar year
during the Lease Term, or as soon thereafter as practical,
Landlord shall make a good faith estimate of the Excess for the
applicable calendar year and Tenant's Pro Rata Share thereof. On
or before the first day of each month during such calendar year,
Tenant shall pay to Landlord, as Additional Base Rental, a monthly
installment equal to one-twelfth of Tenant's Pro Rata Share of
Landlord's estimate of the Excess. Landlord shall have the right
from time to time during any
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such calendar year to revise the estimate of Basic Costs and the
Excess for such year and provide Tenant with a revised statement
therefor, and thereafter the amount Tenant shall pay each month
shall be based upon such revised estimate. If Landlord does not
provide Tenant with an estimate of the Basic Costs and the Excess
by January 1 of any calendar year, Tenant shall continue to pay a
monthly installment based on the previous year's estimate until
such time as Landlord provides Tenant with an estimate of Basic
Costs and the Excess for the current year. Upon receipt of such
current year's estimate, an adjustment shall be made for any month
during the current year with respect to which Tenant paid monthly
installments of Additional Base Rental based on the previous
year's estimate. Tenant shall pay Landlord for any underpayment
within thirty (30) days after demand. Any overpayment shall, at
Landlord's option, be refunded to Tenant within thirty (30) days
or credited against the next installments of Base Rental and
Additional Base Rental due for the months immediately following
the furnishing of such estimate. Any amounts paid by Tenant based
on any estimate shall be subject to adjustment pursuant to the
immediately following paragraph when actual Basic Costs are
determined for such calendar year.
As soon as is practical following the end of each calendar year
during the Lease Term, Landlord shall furnish to Tenant a
statement of Landlord's actual Basic Costs and the actual Excess
for the previous calendar year. If, however, Landlord fails to
furnish Tenant a statement of actual Basic Costs for a given
calendar year within twelve (12) months after the end of said
calendar year and such failure continues for an additional sixty
(60) days after Landlord's receipt of a written request from
Tenant that such statement of actual Basic Costs should be
furnished (the "Request for Statement of Basic Costs"), and
provided the Request for Statement of Basic Costs contains a
statement that Landlord's failure to furnish such statement may
prejudice Landlord's right to collect any underpayment of Basic
Costs from Tenant as described in Section IV.A. of the Lease, then
Landlord shall be deemed to have waived any rights to recover any
underpayment of Basic Costs from Tenant applicable to said
calendar year (except to the extent such underpayment is
attributable to a default by Tenant in its obligation to make
estimated payments of Basic Costs). Further, in no event shall the
foregoing provision describing the time period during which
Landlord is to deliver the statement of actual Basic Costs in any
manner limit or otherwise prejudice Landlord's right to modify
such statement of actual costs after such time period if new,
additional or different information relating to such statement of
actual costs is discovered or otherwise determined.
If the estimated Excess actually paid by Tenant for the prior year
is in excess of Tenant's actual Pro Rata Share of the Excess for
such prior year, then Landlord shall apply such overpayment
against Base Rental and Additional Base Rental due or to become
due hereunder, provided if the Lease Term expires prior to the
determination of such overpayment, Landlord shall refund such
overpayment to Tenant within thirty (30) days after first
deducting the amount of any Rent due hereunder. Likewise, Tenant
shall pay to Landlord, within ten (10) days after demand, any
underpayment with respect to the prior year, whether or not the
Lease has terminated prior to receipt by Tenant of a statement for
such underpayment, it being understood that this clause shall
survive the expiration of the Lease.
B. Basic Costs shall mean Taxes and all costs and expenses paid or
incurred in each calendar year in connection with operating,
maintaining, repairing, managing the Building and the Property,
including, but not limited to, the following:
1. All labor costs for all persons performing services
required or utilized in connection with the operation,
repair, replacement and maintenance of and control of
access to the Building and the Property, including but not
limited to amounts incurred for wages, salaries and other
compensation for services, payroll, social security,
unemployment and other similar taxes, workers' compensation
insurance, uniforms, training, disability benefits,
pensions, hospitalization, retirement plans, group
insurance or any other similar or like expenses or
benefits.
8
2. All management fees (not to exceed, an a per annum basis,
5% of the gross receipts for the Building), the cost of
equipping and maintaining a management office at the
Building, accounting services, legal fees not attributable
to leasing and collection activity, and all other
administrative costs relating to the Building and the
Property. If management services are not provided by a
third party, Landlord shall be entitled to a management fee
comparable to that due and payable to third parties
provided Landlord or management companies owned by, or
management divisions of, Landlord perform actual management
services of a comparable nature and type as normally would
be performed by third parties.
3. All rental and/or purchase costs of materials, supplies,
tools and equipment used in the operation, repair,
replacement (other than replacements deemed to be a capital
improvement under generally accepted accounting principles,
in which event Section IV.B.11 below shall control with
respect to such item) and maintenance and the control of
access to the Building and the Property.
4. All amounts charged to Landlord by contractors and/or
suppliers for services, replacement parts, components,
materials, equipment and supplies furnished in connection
with the operation, repair, maintenance, replacement of and
control of access to any part of the Building, or the
Property generally, including the heating, air
conditioning, ventilating, plumbing, electrical, elevator
and other systems and equipment.
5. All premiums and deductibles paid by Landlord for fire and
extended coverage insurance, earthquake and extended
coverage insurance, liability and extended coverage
insurance, rental loss insurance, elevator insurance,
boiler insurance and other insurance customarily carried
from time to time by landlords of comparable office
buildings in the Buckhead area of Atlanta, Georgia or
required to be carried by Landlord's Mortgagee.
6. Charges for water, gas, steam and sewer, but excluding
those charges for which Landlord is otherwise reimbursed by
tenants, and charges for Electrical Costs. For purposes
hereof, the term "Electrical Costs" shall mean: (i) all
charges paid by Landlord for electricity supplied to the
Building, Property and Premises, regardless of whether such
charges are characterized as distribution charges,
transmission charges, generation charges, public good
charges, disconnection charges, competitive transaction
charges, stranded cost recoveries or otherwise; (ii) except
to the extent otherwise included in Basic Costs, any costs
incurred in connection with the energy management program
for the Building, Property and Premises, including any
costs incurred for the replacement of lights and ballasts
and the purchase and installation of sensors and other
equipment that saves energy; and (iii) if and to the extent
permitted by law, a reasonable fee for the services
provided by Landlord in connection with the selection of
utility companies and the negotiation and administration of
contracts for the generation of electricity.
Notwithstanding the foregoing, Electrical Costs shall be
adjusted as follows: (a) any amounts received by Landlord
as reimbursement for above standard electrical consumption
shall be deducted from Electrical Costs, (b) the cost of
electricity incurred in providing overtime HVAC to specific
tenants shall be deducted from Electrical Costs, it being
agreed that the electrical component of overtime HVAC Costs
shall be calculated as a reasonable percentage of the total
HVAC costs charged to such tenants, and (c) if Tenant is
billed directly for the cost of electricity to the Premises
as a separate charge in addition to Base Rental and Basic
Costs, the cost of electricity to individual tenant spaces
in the Building shall be deducted from Electrical Costs.
7. "Taxes", which for purposes hereof, shall mean: (a) all
real estate taxes and assessments on the Property, the
Building or the Premises, and taxes and assessments levied
in substitution or supplementation in whole
9
or in part of such taxes, (b) all personal property taxes
for the Building's personal property, including license
expenses, (c) all taxes imposed on services of Landlord's
agents and employees, (d) all other taxes, fees or
assessments now or hereafter levied by any governmental
authority on the Property, the Building or its contents or
on the operation and use thereof (except as relate to
specific tenants), and (e) all costs and fees incurred in
connection with seeking reductions in or refunds in Taxes
including, without limitation, any costs incurred by
Landlord to challenge the tax valuation of the Building,
but excluding income taxes. For the purpose of determining
real estate taxes and assessments for any given calendar
year, the amount to be included in Taxes for such year
shall be as follows: (1) with respect to any special
assessment that is payable in installments, Taxes for such
year shall include the amount of the installment (and any
interest) due and payable during such year; and (2) with
respect to all other real estate taxes, Taxes for such year
shall, at Landlord's election, include either the amount
accrued, assessed or otherwise imposed for such year or the
amount due and payable for such year, provided that
Landlord's election shall be applied consistently
throughout the Lease Term. If a reduction in Taxes is
obtained for any year of the Lease Term during which Tenant
paid its Pro Rata Share of Basic Costs, then Basic Costs
for such year will be retroactively adjusted and Landlord
shall provide Tenant with a credit, if any, based on such
adjustment. Likewise, if a reduction is subsequently
obtained for Taxes for the Base Year (if Tenant's Pro Rata
Share is based upon increases in Basic Costs over a Base
Year), Basic Costs for the Base Year shall be restated and
the Excess for all subsequent years recomputed. Tenant
shall pay to Landlord Tenant's Pro Rata Share of any such
increase in the Excess within thirty (30) days after
Tenant's receipt of a statement therefor from Landlord.
8. All landscape expenses and costs of maintaining, repairing,
resurfacing and striping of the parking areas and garages
of the Property, if any.
9. Cost of all maintenance service agreements, including those
for equipment, alarm service, window cleaning, venetian
blind cleaning, janitorial services, pest control, uniform
supply, plant maintenance, landscaping, and any parking
equipment.
10. Cost of all other repairs, replacements and general
maintenance of the Property and Building neither specified
above nor directly billed to tenants.
11. The amortized cost of capital improvements made to the
Building or the Property which are: (a) primarily for the
purpose of reducing operating expense costs or otherwise
improving the operating efficiency of the Property or
Building; or (b) required to comply with any laws, rules or
regulations of any governmental authority. The cost of such
capital improvements shall be amortized over a period of
five (5) years and shall, at Landlord's option, include
interest at a rate that is reasonably equivalent to the
interest rate that Landlord would be required to pay to
finance the cost of the capital improvement in question as
of the date such capital improvement is performed, provided
if the payback period for any capital improvement is less
than five (5) years, Landlord may amortize the cost of such
capital improvement over the payback period.
Notwithstanding the foregoing, the portion of the annual
amortized costs to be included in Basic Costs in any
calendar year with respect to a capital improvement which
is intended to reduce expenses or improve the operating
efficiency of the Property or Building shall equal the
lesser of: a) such annual amortized costs; and b) the
actual annual amortized reduction in expenses for that
portion of the amortization period of the capital
improvement which falls within the Lease Term.
12. Any other expense or charge of any nature whatsoever which,
in accordance with general industry practice with respect
to the operation of
10
a first-class office building in Atlanta, Georgia, would be
construed as an operating expense.
In addition, if Landlord incurs any Taxes or costs and
expenses in connection with the operation, maintenance,
repair, or management of the Building and one or more other
buildings, such costs and expenses shall be equitably
prorated between the Building and such other buildings and
the Building's equitable share thereof shall be included in
Basic Costs. Notwithstanding the foregoing, for purposes of
computing Tenant's Pro Rata Share of Basic Costs, the
Controllable Basic Costs (hereinafter defined) shall not
increase by more than six percent (6%) per calendar year on
a compounding basis over the course of the Lease Term. In
other words, Controllable Basic Costs for the first
calendar year after the Base Year shall not exceed one
hundred six percent (106%) of the Controllable Basic Costs
for the Base Year. Controllable Basic Costs for the second
calendar year after the Base Year shall not exceed one
hundred six percent (106%) of the limit on Controllable
Basic Costs for the first calendar year after the Base
Year, etc. By way of illustration, if Controllable Basic
Costs were $10.00 per rentable square for the Base Year,
then Controllable Basic Costs for the first (1st) calendar
year following the Base Year shall not exceed $10.60 per
rentable square foot, and Controllable Basic Costs for the
second calendar year following the Base Year shall not
exceed $11.24 per rentable square foot. "Controllable Basic
Costs" shall mean all Basic Costs exclusive of the cost of
Taxes, insurance, utilities and capital improvements.
Basic Costs shall not include the cost of capital
improvements (except as set forth above and as
distinguished from replacement parts or components
purchased and installed in the ordinary course),
depreciation, interest (except as provided above with
respect to the amortization of capital improvements), lease
commissions, and principal payments on mortgage and other
non-operating debts of Landlord.
Basic Costs shall also exclude the following:
a. Repairs or other work occasioned by (i) fire,
windstorm, or other casualty of the type
which Landlord has insured (to the extent
that Landlord has received insurance proceeds
and provided that the amount of any
deductible paid by Landlord shall be included
in Basic Costs), or (ii) the exercise of the
right of eminent domain (to the extent that
such repairs or other work are covered by the
proceeds of the award, if any, received by
Landlord).
b. Leasing and brokerage commissions, attorney's
fees, costs, and disbursements and other
expenses incurred in connection with
negotiation of leases with prospective
tenants.
c. Rental concessions granted to specific
tenants and expenses incurred in renovating
or otherwise improving or decorating,
painting, or redecorating space for specific
tenants, other than ordinary repairs and
maintenance provided to all tenants.
d. Overhead and profit increment paid to
subsidiaries or other affiliates of Landlord
for services (including management services
and the fees paid in connection therewith) on
or to the Property, Building and\or Premises
to the extent only that the costs of such
services exceed the competitive cost for such
services rendered by persons or entities of
similar skill, competence and experience.
e. Advertising and promotional expenditures.
f. Any penalties or liquidated damages that
Landlord pays to Tenant under this Lease or
to any other tenants in the Building under
their respective leases.
g. Attorney's fees, costs and other expenses
incurred in connection with disputes with
tenants or other occupants of the Building or
11
incurred to enforce the obligations of
tenants under leases of portions of the
Building.
h. The cost or expense of any services or
benefits provided to other tenants in the
Building and not provided or available to
Tenant.
i. The cost of operating any commercial
concession which is operated by Landlord in
the Building, including without limitation,
any compensation paid to clerks, attendants
or other persons operating such commercial
concessions on behalf of Landlord, but only
to the extent revenues from any such
commercial concessions exceed such costs and
compensation.
j. Any fines or penalties incurred as a result
of violation by Landlord of any law, order,
rule or regulation of any governmental
authority.
k. Expenses incurred in connection with the
initial construction of the Building, Garage
and Common Areas.
l. All costs of purchasing, repairing and
replacing major sculptures, paintings or
other major works or objects of art (as
opposed to decorations purchased or leased by
Landlord for display in the Common Areas of
the Building).
m. To the extent that parking revenues exceed
parking expenses, the costs incurred in
owning, operating, maintaining and repairing
any underground or above-ground parking
garage and/or any other parking facilities
associated with the Building and Common
Areas.
n. Salaries or fringe benefits of (i) employees
above the grade of building manager or
general manager, and (ii) employees whose
time is not spent directly and solely in the
operation of the Property, provided that if
any employee performs services in connection
with the Building and other buildings, costs
associated with such employee may be
proportionately included in Basic Costs based
on the percentage of time such employee
spends in connection with the operation,
maintenance and management of the Building.
o. Any expenses for which Landlord has received
actual reimbursement, whether by insurance or
otherwise (other than through Basic Costs).
p. Any costs, fines or penalties incurred due to
violations by Landlord of any environmental
law in effect (and as enforced) as of the
Commencement Date (except where such costs,
fines or penalties are incurred by Landlord
for violations of any such law, order, rule
or regulation that is ultimately determined
to be invalid or inapplicable); and any cost
or expense related to removal, cleaning,
abatement or remediation of "hazardous
materials" in or about the Building, Common
Area or Property, including, without
limitation, hazardous substances in the
ground water or soil, except to the extent
such removal, cleaning, abatement or
remediation is related to the general repair
and maintenance of the Building, Common Area
or Property.
q. All costs associated with the operation of
the business of the ownership or entity which
constitutes "Landlord" (as distinguished from
the costs of operating, maintaining,
repairing and managing the Building)
including, but not limited to, Landlord's
general corporate overhead and general
administrative expenses.
r. Costs incurred by Landlord in connection with
the correction of defects in design and
original construction of the Building, Garage
and Common Areas.
12
s. Any fines, costs, penalties or interest
resulting from the adjudicated negligence or
adjudicated willful misconduct of the
Landlord or its agents, contractors, or
employees.
t. Ground lease rental.
u. Landlord's charitable and political
contributions.
v. Costs incurred (less costs of recovery) for
any items to the extent covered by a
manufacturer's, materialman's, vendor's or
contractor's warranty (a "Warranty") which
are paid by such manufacturer, materialman,
vendor or contractor (Landlord shall use
reasonable efforts to pursue a warranty claim
for items covered by a Warranty unless
Landlord determines in good faith that such
action would not be in the best interest of
the Building).
w. The cost of statements and reports rendered
to shareholders of Landlord.
x. All bad debt loss, rent loss, or reserves for
bad debt or rent loss;
y. To the extent any services (on a per square
foot basis) are provided to a tenant or
occupant of the Building at a level that is
materially greater than the level at which
such services are available to Tenant, the
cost of providing such services at a level
that is over and above the level available to
Tenant shall be excluded from Basic Costs.
If the Building is not at least ninety-five percent (95%)
occupied during any calendar year of the Lease Term or if
Landlord is not supplying services to at least ninety-five
percent (95%) of the total Rentable Area of the Building at
any time during any calendar year of the Lease Term, actual
Basic Costs for purposes hereof shall be determined as if
the Building had been ninety-five percent (95%) occupied
and Landlord had been supplying services to ninety-five
percent (95%) of the Rentable Area of the Building during
such year. If Tenant pays for its Pro Rata Share of Basic
Costs based on increases over a "Base Year" and Basic Costs
for any calendar year during the Lease Term are determined
as provided in the foregoing sentence, Basic Costs for such
Base Year shall also be determined as if the Building had
been ninety-five percent (95%) occupied and Landlord had
been supplying services to ninety-five percent (95%) of the
Rentable Area of the Building. Any necessary extrapolation
of Basic Costs under this Article shall be performed by
adjusting the cost of those components of Basic Costs that
are impacted by changes in the occupancy of the Building
(including, at Landlord's option, Taxes) to the cost that
would have been incurred if the Building had been
ninety-five percent (95%) occupied and Landlord had been
supplying services to ninety-five percent (95%) of the
Rentable Area of the Building. In addition, if Tenant's Pro
Rata Share of Basic Costs is determined based upon
increases over a Base Year and Basic Costs for the Base
Year include exit and disconnection fees, stranded cost
charges and/or competitive transaction charges, such fees
and charges may, at Landlord's option, be imputed as a
Basic Cost for subsequent years in which such fees and
charges are not incurred. In no event, however, shall the
amount of such imputed fees and charges exceed the actual
amount of exit and disconnection fees, stranded cost
charges and/or competitive transaction charges that were
actually included in Basic Costs for the Base Year.
C. Tenant, within ninety (90) days after receiving Landlord's
statement of actual Basic Costs for a particular calendar
year, shall have the right to provide Landlord with written
notice (the "Review Notice") of its intent to review
Landlord's books and records relating to the Basic Costs
for such calendar year. Within a reasonable time after
receipt of a timely Review Notice, Landlord shall make such
books and records available to Tenant or Tenant's agent for
its review. If any records are maintained at a location
other than the office of the Building, Tenant may either
inspect the records at such other location or pay for the
reasonable
13
cost of copying and shipping the records. If Tenant retains
an agent to review Landlord's books and records for any
calendar year, such agent must be CPA firm licensed to do
business in the state in which the Building is located.
Tenant shall be solely responsible for any and all costs,
expenses and fees incurred by Tenant or Tenant's agent in
connection with such review. If Tenant elects to review
Landlord's books and records, within thirty (30) days after
such books and records are made available to Tenant, Tenant
shall have the right to give Landlord written notice
stating in reasonable detail any objection to Landlord's
statement of actual Basic Costs for such calendar year. If
Tenant fails to give Landlord written notice of objection
within such thirty (30) day period or fails to provide
Landlord with a Review Notice within the ninety (90) day
period provided above, Tenant shall be deemed to have
approved Landlord's statement of Basic Costs in all
respects and shall thereafter be barred from raising any
claims with respect thereto. Notwithstanding the foregoing,
if a subsequent review of Expenses in accordance with the
terms hereof discloses that a particular material item of
Expenses has been overstated by more than five percent (5%)
and there is a reasonable basis to assume such item was
similarly overstated in any of the three (3) immediately
previous calendar years, Landlord shall allow Tenant to
perform a review of Landlord's books and records with
respect to such particular item(s) for any of the three (3)
immediately previous calendar years in which Tenant elected
not to review Landlord's books and records. Upon Landlord's
receipt of a timely objection notice from Tenant, Landlord
and Tenant shall work together in good faith to resolve the
discrepancy between Landlord's statement and Tenant's
review. If Landlord and Tenant determine that Basic Costs
for the calendar year in question are less than reported,
Landlord shall provide Tenant with a credit against future
Base Rental and Additional Base Rental in the amount of any
overpayment by Tenant. Likewise, if Landlord and Tenant
determine that Basic Costs for the calendar year in
question are greater than reported, Tenant shall forthwith
pay to Landlord the amount of underpayment by Tenant. In
addition, if Landlord and Tenant determine that Basic Costs
for the Building for the year in question were less than
stated by more than five percent (5%), Landlord, within
thirty (30) days after its receipt of paid invoices
therefor from Tenant, shall reimburse Tenant for any
reasonable amounts paid by Tenant to third parties in
connection with such review by Tenant. Any information
obtained by Tenant pursuant to the provisions of this
Section shall be treated as confidential. Notwithstanding
anything herein to the contrary, Tenant shall not be
permitted to examine Landlord's books and records or to
dispute any statement of Basic Costs unless Tenant has paid
to Landlord the amount due as shown on Landlord's statement
of actual Basic Costs, said payment being a condition
precedent to Tenant's right to examine Landlord's books and
records.
D. Tenant covenants and agrees to pay to Landlord during the
Lease Term, without any setoff or deduction whatsoever, the
full amount of all Base Rental and Additional Base Rental
due hereunder. In addition, Tenant shall pay and be liable
for, as additional rent, all rental, sales and use taxes or
other similar taxes, if any, levied or imposed by any city,
state, county or other governmental body having authority,
such payments to be in addition to all other payments
required to be paid to Landlord by Tenant under the terms
and conditions of this Lease. Any such payments shall be
paid concurrently with the payments of the Rent on which
the tax is based. The Base Rental, Tenant's Pro Rata Share
of Basic Costs and any recurring monthly charges due
hereunder shall be due and payable in advance on the first
day of each calendar month during the Lease Term without
demand, provided that the installment of Base Rental for
the first full calendar month of the Lease Term shall be
payable upon the execution of this Lease by Tenant. All
other items of Rent shall be due and payable by Tenant on
or before ten (10) Business Days after Tenant's receipt of
billing by Landlord. If the Lease Term commences on a day
other than the first day of a calendar month or terminates
on a day other than the last day of a calendar month, then
the monthly Base Rental and Tenant's Pro Rata Share of
Basic Costs for such month shall be prorated for the number
of days in such month occurring within the Lease Term based
on a fraction, the numerator of which is the number of days
of the Lease Term that fell within such calendar month and
the denominator of which is thirty (30). All such payments
shall be by a good and sufficient check. No payment by
Tenant or receipt or acceptance by Landlord of a lesser
amount than the correct amount of Rent due under this Lease
shall be deemed to be
14
other than a payment on account of the earliest Rent due
hereunder, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment be
deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other available
remedy. The acceptance by Landlord of any Rent on a date
after the due date of such payment shall not be construed
to be a waiver of Landlord's right to declare a default for
any other late payment. Tenant's covenant to pay Rent shall
be independent of every other covenant set forth in this
Lease.
E. If Tenant fails to pay any installment of Rent when due and
payable hereunder, a service fee equal to five percent (5%)
of such unpaid amount will be due and payable immediately
by Tenant to Landlord (provided Tenant shall be entitled to
a grace period of five (5) days after notice from Landlord
with respect to the first two (2) late payments in any
calendar year). Landlord shall also be entitled to interest
on late payments of Rent as described in Section XXIII.D.
below.
V. USE.
The Premises shall be used for the Permitted Use and for no other
purpose. Tenant agrees not to use or permit the use of the Premises for any
purpose which is illegal, dangerous to life, limb or property or which, in
Landlord's reasonable opinion, creates a nuisance or which would increase the
cost of insurance coverage with respect to the Building. Tenant shall conduct
its business and control its agents, servants, contractors, employees,
customers, licensees, and invitees in such a manner as not to unreasonably
interfere with, annoy or disturb other tenants, or in any way interfere with
Landlord in the management and operation of the Building. Tenant will maintain
the Premises in a clean and healthful condition, and comply with all laws,
ordinances, orders, rules and regulations of any governmental entity with
reference to the operation of Tenant's business and to the use, condition,
configuration or occupancy of the Premises, including without limitation, the
Americans with Disabilities Act (collectively referred to as "Laws") . Except to
the extent properly included in Basic Costs, Landlord shall be responsible for
the cost of correcting any violations of Title III of the Americans with
Disabilities Act (ADA) with respect to the Common Areas of the Building.
Notwithstanding the foregoing, Landlord shall have the right to contest any
alleged violation in good faith, including, without limitation, the right to
apply for and obtain a waiver or deferment of compliance, the right to assert
any and all defenses allowed by law and the right to appeal any decisions,
judgments or rulings to the fullest extent permitted by law. Landlord, after the
exhaustion of any and all rights to appeal or contest, will make all repairs,
additions, alterations or improvements necessary to comply with the terms of any
final order or judgment. Tenant, within ten (10) days after receipt thereof,
shall provide Landlord with copies of any notices it receives with respect to a
violation or alleged violation of any Laws. Tenant will comply with the rules
and regulations of the Building attached hereto as EXHIBIT B and such other
rules and regulations adopted and altered by Landlord from time to time and will
cause all of its agents, servants, contractors, employees, customers, licensees
and invitees to do so. All changes to such rules and regulations will be
reasonable and shall be sent by Landlord to Tenant in writing. The rules and
regulations shall be generally applicable, and generally applied in the same
manner, to all tenants of the Building.
VI. SECURITY DEPOSIT.
A. As security for the performance of Tenant's obligations under this
Lease, upon the execution of this Lease by Tenant, Tenant shall
deliver to Landlord a Security Deposit consisting of an
irrevocable letter of credit (the "Letter of Credit"), which
Letter of Credit shall: (a) be in the amount of $1,212,468.06; (b)
be issued on the form attached hereto as EXHIBIT F; (c) name
EOP-Buckhead, L.L.C. or such other designee of Landlord, as
requested by Landlord, as its beneficiary; (d) be drawn on an FDIC
insured financial institution satisfactory to the Landlord; and
(e) expire no earlier than sixty (60) days after the Termination
Date of this Lease.
B. The Security Deposit shall be delivered to Landlord and shall be
held by Landlord without liability for interest (unless required
by law). The Security Deposit is not an advance payment of Rent or
a measure of Tenant's liability for damages. Landlord may, from
time to time, without prejudice to any other remedy, use all or a
portion of the Security Deposit to satisfy past due Rent or to
cure any uncured default by Tenant. If Landlord uses the Security
Deposit, Tenant shall on demand restore the Security Deposit to
its original amount. Landlord shall return
15
any unapplied portion of the Security Deposit to Tenant within 45
days after the later to occur of: (1) the determination of
Tenant's Pro Rata Share of any Excess (defined in Section IV.A.)
for the final year of the Lease Term; (2) the date Tenant
surrenders possession of the Premises to Landlord in accordance
with this Lease; or (3) the Termination Date. If Landlord
transfers its interest in the Premises, Landlord may assign the
Security Deposit to the transferee and, following the assignment,
Landlord shall have no further liability for the return of the
Security Deposit. Landlord shall not be required to keep the
Security Deposit separate from its other accounts.
C. Notwithstanding anything herein to the contrary, provided Tenant
is not in default under this Lease as of the effective date of any
reduction of the Letter of Credit, Tenant shall have the right to
reduce the amount of the Letter of Credit by $242,493.61 effective
as of the 3rd anniversary of the Commencement Date and each
subsequent annual anniversary of the Commencement Date thereafter.
Landlord may prevent any such reduction by delivering written
notice to the issuer of the Letter of Credit that Tenant is in
default under the Lease. Notwithstanding the foregoing, effective
as of the 3rd anniversary of the Commencement Date, upon written
request of Tenant and provided that Tenant is not in default under
this Lease as of such date, Landlord agrees to review Tenant's
then current financial statements and to discuss with Tenant the
feasibility of reducing or eliminating the Security Deposit in its
entirety or accelerating the reduction schedule described above.
However, although Landlord agrees to discuss such matter with
Tenant in good faith, any decision of Landlord with respect to
such matter shall be made in Landlord's sole discretion.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord, as part of Basic Costs (except as otherwise provided),
agrees to furnish Tenant the following services:
1. Water for use in the lavatories on the floor(s) on which
the Premises is located. If Tenant desires water in the
Premises for any approved reason, including a private
lavatory or kitchen, cold water shall be supplied, at
Tenant's sole cost and expense, from the Building water
main through a line and fixtures installed at Tenant's sole
cost and expense with the prior reasonable consent of
Landlord. If Tenant desires hot water in the Premises,
Tenant, at its sole cost and expense and subject to the
prior reasonable consent of Landlord, shall install a hot
water heater in the Premises. Tenant shall be solely
responsible for maintenance and repair of any such hot
water heater.
2. Central heat and air conditioning in season during Normal
Business Hours, at such temperatures and in such amounts as
are appropriate to maintain the standards reflected on the
HVAC specifications reflected in the "Mechanical System for
Building" portion of EXHIBIT D-1 attached hereto, or as
required by governmental authority. If Tenant requires
central heat, ventilation or air conditioning at hours
other than Normal Business Hours, such central heat,
ventilation or air conditioning shall be furnished only
upon the oral request of an authorized representative of
Tenant (i.e. pre-authorized by Tenant in writing) or the
written request of Tenant delivered to Landlord at the
office of the Building prior to 12:00 P.M. on the date
excess usage is required if such date is a Business Day, or
(ii) 12:00 P.M. on the immediately preceding Business Day
if such excess usage is desired on a Saturday, Sunday or
Holiday. Tenant shall pay Landlord, as Additional Base
Rental, the entire cost of additional service as such costs
are determined by Landlord from time to time. As of the
date hereof, Landlord's charge for after hours heating and
air conditioning service is $30.00 per hour.
3. Maintenance and repair of all Common Areas in a first class
manner deemed by Landlord to be standard for buildings of
similar class, size, age and location in the Buckhead area
of Atlanta, Georgia.
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4. Janitor service on Business Days; provided, however, if
Tenant's use, floor covering or other improvements require
special services, Tenant shall pay the additional cost
reasonably attributable thereto as Additional Base Rental.
5. Passenger elevator service in common with other tenants of
the Building, provided that, subject to Force Majeure, at
least one (1) passenger elevator servicing the Premises
shall be available for the use of Tenant, twenty-four (24)
hours a day, 365/6 days per year.
6. Electricity to the Premises for general office use, in
accordance with and subject to the terms and conditions set
forth in Article XI of this Lease.
7. Access to the Building for Tenant and its employees
24-hours a day, seven (7) days a week, subject to the terms
of this Lease and such security or monitoring systems as
Landlord may reasonably impose, including, without
limitation, sign in procedures and/or presentation of
identification cards.
8. Security to the Building consistent with a first-class
office building in the Buckhead area in Atlanta, Georgia,
which may be provided through a security system involving
any one or a combination of cameras, monitoring devices or
guards, sign-in or identification procedures or other
comparable system.
B. Landlord's failure to furnish, or any interruption or termination
of, services due to the application of Laws (defined in Section
I.B.12 above), the failure of any equipment, the performance of
repairs, improvements or alterations, or the occurrence of any
event or cause beyond the reasonable control of Landlord (a
"Service Failure") shall not render Landlord liable to Tenant,
constitute a constructive eviction of Tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to
fulfill any covenant or agreement. However, if the Premises, or a
material portion of the Premises, is made untenantable for a
period in excess of 3 consecutive Business Days as a result of the
Service Failure, then Tenant, as its sole remedy, shall be
entitled to receive an abatement of Rent payable hereunder during
the period beginning on the 4th consecutive Business Day of the
Service Failure and ending on the day the service has been
restored. If the entire Premises has not been rendered
untenantable by the Service Failure, the amount of abatement that
Tenant is entitled to receive shall be prorated based upon the
percentage of the Premises rendered untenantable and not used by
Tenant.
C. Tenant expressly acknowledges that if Landlord, from time to time,
elects to provide security services, Landlord shall not be deemed
to have warranted the efficiency of any security personnel,
service, procedures or equipment and Landlord shall not be liable
in any manner for the failure of any such security personnel,
services, procedures or equipment to prevent or control, or
apprehend anyone suspected of personal injury, property damage or
any criminal conduct in, on or around the Property.
VIII. LEASEHOLD IMPROVEMENTS.
Any trade fixtures, unattached and movable equipment or furniture, or
other personalty brought into the Premises by Tenant ("Tenant's Property") shall
be owned and insured by Tenant. Tenant shall remove all such Tenant's Property
from the Premises in accordance with the terms of Article XXXV hereof. Any and
all alterations, additions and improvements to the Premises, including any
built-in furniture (collectively, "Leasehold Improvements") shall be owned and
insured by Landlord and shall remain upon the Premises, all without
compensation, allowance or credit to Tenant. Landlord may, nonetheless, at any
time prior to the expiration or earlier termination of this Lease or Tenant's
right to possession, require Tenant to remove any Leasehold Improvements
performed by or for the benefit of Tenant and all electronic, phone and data
cabling as are designated by Landlord (the "Required Removables") at Tenant's
sole cost. In the event that Landlord so elects, Tenant shall remove such
Required Removables within ten (10) Business Days after notice from Landlord,
provided that in no event shall Tenant be required to remove such Required
Removables prior to the expiration or earlier termination of
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this Lease or Tenant's right to possession. In addition to Tenant's obligation
to remove the Required Removables, Tenant shall repair any damage caused by such
removal and perform such other work as is reasonably necessary to restore the
Premises to a "move in" condition. If Tenant fails to remove any specified
Required Removables or to perform any required repairs and restoration within
the time period specified above, Landlord, at Tenant's sole cost and expense,
may remove, store, sell and/or dispose of the Required Removables and perform
such required repairs and restoration work. Tenant, within fifteen (15) days
after demand from Landlord, shall reimburse Landlord for any and all reasonable
costs incurred by Landlord in connection with the Required Removables.
Notwithstanding the foregoing, Tenant may request in writing at the time it
submits its plans and specifications for an alteration, addition or improvement,
that Landlord advise Tenant whether Landlord will require Tenant to remove, at
the termination of this Lease or Tenant's right to possession hereunder, such
alteration, addition or improvement, or any particular portion thereof and
Landlord shall advise Tenant within twenty (20) days after receipt of Tenant's
request as to whether Landlord will require removal; provided, however, Landlord
shall have the right to require Tenant to remove any vault, stairway, raised
floor or structural alterations installed in the Premises, regardless of whether
Landlord timely notified Tenant that it would require such removal.
IX. GRAPHICS.
Landlord shall provide and install, at Tenant's cost (subject to the
Allowance), any suite numbers and Tenant identification on the exterior of the
Premises using the standard graphics for the Building. Tenant shall not be
permitted to install any signs or other identification without Landlord's prior
written consent, which consent shall not be unreasonably withheld. Landlord
shall include Tenant's name, at Tenant's cost, in the Building lobby directory.
X. REPAIRS AND ALTERATIONS.
A. Except to the extent such obligations are imposed upon Landlord
hereunder, Tenant, at its sole cost and expense, shall perform all
maintenance and repairs to the Premises as are necessary to keep
the same in good condition and repair throughout the entire Lease
Term, reasonable wear and tear excepted. Tenant's repair and
maintenance obligations with respect to the Premises shall
include, without limitation, any necessary repairs with respect
to: (1) any carpet or other floor covering, (2) any interior
partitions, (3) any doors, (4) the interior side of any demising
walls, (5) any telephone and computer cabling that serves Tenant's
equipment exclusively, (6) any supplemental air conditioning
units, private showers and kitchens, including any plumbing in
connection therewith, and similar facilities serving Tenant
exclusively, and (7) any alterations, additions or improvements
performed by contractors retained by Tenant. All such work shall
be performed in accordance with section X.B. below and the rules,
policies and procedures reasonably enacted by Landlord from time
to time for the performance of work in the Building. If Tenant
fails to make any necessary repairs to the Premises within ten
(10) days after notice from Landlord (provided that no prior
notice shall be required in the event of an emergency), Landlord
may, at its option, make such repairs, and Tenant shall pay the
cost thereof to the Landlord on demand as Additional Base Rental,
together with an administrative charge in an amount equal to ten
percent (10%) of the cost of such repairs. Notwithstanding the
foregoing, if the repair to be performed by Tenant cannot
reasonably be completed within ten (10) days by Tenant or
Landlord, Landlord shall not exercise its right to make such
repair on Tenant's behalf so long as Tenant commences such repair
within ten (10) days after notice from Landlord and is diligently
pursuing the same to completion. Landlord shall, at its expense
(except as included in Basic Costs), keep and maintain in good
repair and working order and make all repairs to and perform
necessary maintenance upon: (a) the roof, gutters, downspouts, if
any, and all other structural elements of the Building; and (b)
all mechanical, electrical and plumbing systems that serve the
Building in general; and (c) the Building facilities common to all
tenants including, but not limited to, the ceilings, walls and
floors in the Common Areas.
B. Tenant shall not make or allow to be made any alterations,
additions or improvements to the Premises without first obtaining
the written consent of Landlord in each such instance which
consent shall not be unreasonably withheld, conditioned or
delayed. Prior to commencing any such work and as a condition to
obtaining Landlord's consent, Tenant must furnish Landlord with
18
plans and specifications reasonably acceptable to Landlord (which
Landlord shall approve or disapprove within five (5) Business Days
after receipt from Tenant provided Tenant includes a written
reminder notice that Landlord is to respond within five (5)
Business Days); names and addresses of contractors reasonably
acceptable to Landlord; copies of contracts; necessary permits and
approvals; evidence of contractor's and subcontractor's insurance
in accordance with Article XVI section B. hereof; and payment bond
or other security, all in form and amount satisfactory to
Landlord. All such improvements, alterations or additions shall be
constructed in a good and workmanlike manner using Building
Standard materials or other new materials of equal or greater
quality. Landlord, to the extent reasonably necessary to avoid any
disruption to the tenants and occupants of the Building, shall
have the right to designate the time when any such alterations,
additions and improvements may be performed and to otherwise
designate reasonable rules, regulations and procedures for the
performance of work in the Building. Upon completion, Tenant shall
furnish "as-built" plans, contractor's affidavits and full and
final waivers of lien and receipted bills covering all labor and
materials. All improvements, alterations and additions shall
comply with all insurance requirements, codes, ordinances, laws
and regulations, including without limitation, the Americans with
Disabilities Act. Tenant shall reimburse Landlord upon demand as
Additional Base Rental for all reasonable sums, if any, expended
by Landlord for third party examination of the architectural,
mechanical, electric and plumbing plans for any alterations,
additions or improvements. In addition, if Landlord so requests,
Landlord shall be entitled to oversee the construction of any
alterations, additions or improvements that may affect the
structure of the Building or any of the mechanical, electrical,
plumbing or life safety systems of the Building. In the event
Landlord elects to oversee such work, Landlord shall be entitled
to receive a fee for such oversight in an amount equal to ten
percent (10%) of the cost of such alterations, additions or
improvements. Landlord's approval of Tenant's plans and
specifications for any work performed for or on behalf of Tenant
shall not be deemed to be a representation by Landlord that such
plans and specifications comply with applicable insurance
requirements, building codes, ordinances, laws or regulations or
that the alterations, additions and improvements constructed in
accordance with such plans and specifications will be adequate for
Tenant's use.
XI. USE OF ELECTRICAL SERVICES BY TENANT.
A. All electricity used by Tenant in the Premises shall, at
Landlord's option, be paid for by Tenant either: (1) through
inclusion in Base Rental and Basic Costs (except as provided in
Section XI.B. below with respect to excess usage); or (2) by a
separate charge billed directly to Tenant by Landlord and payable
by Tenant as Additional Base Rental within ten (10) days after
billing; or (3) by a separate charge or charges billed by the
utility company(ies) providing electrical service and payable by
Tenant directly to such utility company(ies). It is understood
that electrical service to the Premises may be furnished by one or
more companies providing electrical generation, transmission
and/or distribution services and that the cost of electricity may
be billed as a single charge or divided into and billed in a
variety of categories such as distribution charges, transmission
charges, generation charges, public good charges or other similar
categories. Landlord shall have the exclusive right to select the
company(ies) providing electrical service to the Building,
Premises and Property, to aggregate the electrical service for the
Building, Premises and Property with other buildings, to purchase
electricity for the Building, Premises and Property through a
broker and/or buyers group and to change the providers and/or
manner of purchasing electricity from time to time. Landlord shall
be entitled to receive a reasonable fee (if permitted by law) for
the services provided by Landlord in connection with the selection
of utility companies and the negotiation and administration of
contracts for the generation of electricity.
B. Tenant's use of electrical service in the Premises shall not
exceed, either in voltage, rated capacity, use beyond Normal
Business Hours or overall load, that which Landlord deems to be
standard for the Building. For purposes hereof, the electrical
"standard" for the Building is: (a) a design load of two (2) ▇▇▇▇▇
per square foot of net usable floor area for all Building Standard
overhead lighting located within the Premises which requires a
voltage of 480/277 volts; and (b) a
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connected load of five (5) ▇▇▇▇▇ per square foot of net usable
area for all equipment located and operated within the Premises
which requires a voltage of 120/208 volts single phase or less, it
being understood that electricity required to operate the base
building HVAC system is not included within or deducted from such
five (5) ▇▇▇▇▇ per square foot. If Tenant shall consume (or
request that it be allowed to consume) electrical service in
excess of that deemed by Landlord to be standard for the Building,
Landlord may refuse to consent to such excess usage or may
condition its consent to such excess usage upon such conditions as
Landlord reasonably elects (including the installation of utility
service upgrades, submeters, air handlers or cooling units), and
all such additional usage (to the extent permitted by law),
installation and maintenance thereof shall be paid for by Tenant
as Additional Base Rental. Landlord, at any time during the Lease
Term, shall have the right to separately meter electrical usage
for the Premises or to measure electrical usage by survey or any
other method that Landlord, in its reasonable judgment, deems to
be appropriate.
C. Notwithstanding Section A. above to the contrary, if Landlord
permits Tenant to purchase electrical power for the Premises from
a provider other than Landlord's designated company(ies), such
provider shall be considered to be a contractor of Tenant and
Tenant shall indemnify and hold Landlord harmless from such
provider's acts and omissions while in, or in connection with
their services to, the Building or Premises in accordance with the
terms and conditions of Article XV. In addition, at the request of
Landlord, Tenant shall allow Landlord to purchase electricity from
Tenant's provider at Tenant's rate or at such lower rate as can be
negotiated by the aggregation of Landlord's and Tenant's
requirements for electricity power.
XII. ENTRY BY LANDLORD.
Landlord and its agents or representatives shall have the right to enter
the Premises to inspect the same, or to show the Premises to prospective
purchasers, mortgagees, tenants (during the last twelve months of the Lease Term
or earlier in connection with a potential relocation) or insurers, or to clean
or make repairs, alterations or additions thereto, including any work that
Landlord deems necessary for the safety, protection or preservation of the
Building or any occupants thereof, or to facilitate repairs, alterations or
additions to the Building or any other tenants' premises. Except for any entry
by Landlord in an emergency situation or to provide normal cleaning and
janitorial service, Landlord shall provide Tenant with reasonable prior notice
of any entry into the Premises, which notice may be given verbally.
Notwithstanding the foregoing, except in emergency situations as determined by
Landlord, Landlord shall exercise reasonable efforts to perform any entry into
the Premises in a manner that is reasonably designed to minimize interference
with the operation of Tenant's business in the Premises. If reasonably necessary
for the protection and safety of Tenant and its employees, Landlord shall have
the right to temporarily close the Premises to perform repairs, alterations or
additions in the Premises, provided that Landlord shall use reasonable efforts
to perform all such work on weekends and after Normal Business Hours. Entry by
Landlord hereunder shall not constitute a constructive eviction or entitle
Tenant to any abatement or reduction of Rent by reason thereof. Notwithstanding
the foregoing, if Landlord temporarily closes the Premises as provided above for
a period in excess of three (3) consecutive Business Days, Tenant, as its sole
remedy, shall be entitled to receive a per diem abatement of Base Rental during
the period beginning on the fourth (4th) consecutive Business Day of closure and
ending on the date on which the Premises are returned to Tenant in a tenantable
condition. Tenant, however, shall not be entitled to an abatement if the
repairs, alterations and/or additions to be performed are required as a result
of the acts or omissions of Tenant, its agents, employees or contractors,
including, without limitation, a default by Tenant in its maintenance and repair
obligations under the Lease.
XIII. ASSIGNMENT AND SUBLETTING.
A. Subject to XIII.E. below, Tenant shall not assign, sublease,
transfer or encumber this Lease or any interest therein or grant
any license, concession or other right of occupancy of the
Premises or any portion thereof or otherwise permit the use of the
Premises or any portion thereof by any party other than Tenant
(any of which events is hereinafter called a "Transfer") without
the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed with respect to any
proposed assignment or subletting. Landlord's consent shall not be
considered unreasonably withheld if: (1) the proposed
20
transferee's financial responsibility does not meet the same
criteria Landlord uses to select Building tenants; (2) the
proposed transferee's business is not suitable for the Building
considering the business of the other tenants and the Building's
prestige or would result in a violation of an exclusive right
granted to another tenant in the Building; (3) the proposed use is
different than the Permitted Use; (4) the proposed transferee is a
government agency or occupant of the Building; (5) Tenant is in
default; or (6) any portion of the Building or Premises would
become subject to additional or different governmental laws or
regulations as a consequence of the proposed Transfer and/or the
proposed transferee's use and occupancy of the Premises.
Notwithstanding the foregoing, Landlord will not withhold its
consent solely because the proposed subtenant or assignee is an
occupant of the Building if Landlord does not have space available
for lease in the Building that is comparable to the space Tenant
desires to sublet or assign. For purposes hereof, Landlord shall
be deemed to have comparable space if it has space available on
any floor of the Building that is approximately the same size as
the space Tenant desires to sublet or assign within six (6) months
of the proposed commencement of the proposed sublease or
assignment. Tenant acknowledges that the foregoing is not intended
to be an exclusive list of the reasons for which Landlord may
reasonably withhold its consent to a proposed Transfer. Any
attempted Transfer in violation of the terms of this Article
shall, at Landlord's option, be void. Consent by Landlord to one
or more Transfers shall not operate as a waiver of Landlord's
rights as to any subsequent Transfers. In addition, Tenant shall
not, without Landlord's consent, publicly advertise the proposed
rental rate for any Transfer.
B. If Tenant requests Landlord's consent to a Transfer, Tenant,
together with such request for consent, shall provide Landlord
with the name of the proposed transferee and the nature of the
business of the proposed transferee, the term, use, rental rate
and all other material terms and conditions of the proposed
Transfer, including, without limitation, a copy of the proposed
assignment, sublease or other contractual documents and evidence
satisfactory to Landlord that the proposed transferee is
financially responsible. Notwithstanding Landlord's agreement to
act reasonably under Section XIII.A. above, Landlord may, within
thirty (30) days after its receipt of all information and
documentation required herein, either, (1) consent to or
reasonably refuse to consent to such Transfer in writing; or (2)
terminate this Lease, with thirty (30) days prior notice, with
respect to the Premises (if Tenant is proposing to assign the
Lease) or with respect to the portion of the Premises that Tenant
is proposing to sublet if the proposed sublease, with or without
renewal options, is to expire during the last twelve (12) months
of the Lease Term. Notwithstanding the foregoing, Tenant, within
ten (10) days after receipt of Landlord's notice of intent to
terminate, may withdraw its request for consent to the Transfer.
In such event, Landlord's election to terminate the Lease with
respect to all or a portion of the Premises as described above
shall be null and void and of no force and effect. If Landlord
consents to any such Transfer, the Transfer and consent thereto
shall be in a form approved by Landlord, and Tenant shall bear all
costs and expenses incurred by Landlord in connection with the
review and approval of such documentation, which costs and
expenses shall be deemed to be at least Five Hundred Dollars
($500.00). Notwithstanding the foregoing, provided that Tenant
does not request any changes to this Lease or Landlord's standard
form of consent in connection with the proposed transfer, such
costs and expenses shall not exceed Five Hundred Dollars
($500.00).
C. Fifty percent (50%) of all cash or other proceeds (the "Transfer
Consideration") of any Transfer of Tenant's interest in this Lease
and/or the Premises, whether consented to by Landlord or not,
shall be paid to Landlord and Tenant hereby assigns all rights it
might have or ever acquire in any such proceeds to Landlord. In
addition to the Rent hereunder, Tenant hereby covenants and agrees
to pay to Landlord fifty percent (50%) of all rent and other
consideration which it receives which is in excess of the Rent
payable hereunder within ten (10) days following receipt thereof
by Tenant. Any assignee of Tenant's rights under this Lease shall
pay all sums due under this Lease directly to Landlord. Further,
if Tenant is in Monetary Default (defined in Section XXII.A.
below), Landlord may require that all sublease payments be made
directly to Landlord, in which case Tenant shall receive a credit
against Rent in the amount of any payments received (less
21
Landlord's share of any excess). However, by accepting any such
payments directly from the assignee or subtenant, whether as a
result of the foregoing or otherwise, Landlord does not waive any
claims against the Tenant hereunder or release Tenant from any
obligations under this Lease, nor recognize the subtenant as the
tenant under the Lease.
D. If Tenant is a corporation, limited liability company or similar
entity, and if at any time during the Lease Term the entity or
entities who own the voting shares at the time of the execution of
this Lease cease for any reason (including but not limited to
merger, consolidation or other reorganization involving another
corporation) to own a majority of such shares, or if Tenant is a
partnership and if at any time during the Lease Term the general
partner or partners who own the general partnership interests in
the partnership at the time of the execution of this Lease, cease
for any reason to own a majority of such interests (except as the
result of transfers by gift, bequest or inheritance to or for the
benefit of members of the immediate family of such original
shareholder[s] or partner[s]), such an event shall be deemed to be
a Transfer. The preceding sentence shall not apply whenever Tenant
is a corporation, the outstanding stock of which is listed on a
recognized security exchange, or if at least eighty percent (80%)
of its voting stock is owned by another corporation, the voting
stock of which is so listed.
E. Notwithstanding anything to the contrary contained in Section
XIII.A or Section XIII.D., Tenant may assign its entire interest
under this Lease or sublet the Premises to a wholly owned
corporation, partnership or other legal entity or affiliate,
subsidiary or parent of Tenant or to any successor to Tenant by
purchase, merger, consolidation or reorganization (hereinafter,
collectively, referred to as "Permitted Transfer" and the
transferee of a Permitted Transfer a "Permitted Transferee")
without the consent of Landlord, provided: (i) Tenant is not in
default under this Lease; (ii) if such proposed transferee is a
successor to Tenant by purchase, merger, consolidation or
reorganization, the continuing or surviving entity shall own all
or substantially all of the assets of Tenant and shall have a net
worth which is at least equal to the greater of Tenant's net worth
at the date of this Lease or Tenant's net worth at the date of the
Transfer; (iii) such proposed transferee operates the business in
the Premises for the Permitted Use and no other purpose; and (iv)
in no event shall any Permitted Transfer release or relieve Tenant
from any of its obligations under this Lease. Tenant shall give
Landlord written notice at least thirty (30) days prior to the
effective date of such Permitted Transfer. As used herein: (a)
"parent" shall mean a company which owns a majority of Tenant's
voting equity; (b) "subsidiary" shall mean an entity wholly owned
by Tenant or at least fifty-one percent (51%) of whose voting
equity is owned by Tenant; and (c) "affiliate" shall mean an
entity controlled, controlling or under common control with
Tenant. Notwithstanding the foregoing, sale of the shares of
equity of any affiliate or subsidiary to which this Lease has been
assigned or transferred other than to another parent, subsidiary
or affiliate of the original Tenant named hereunder shall be
deemed to be an assignment requiring the consent of Landlord
hereunder.
F. Any Transfer consented to by Landlord in accordance with this
Article XIII shall be only for the Permitted Use and for no other
purpose. In no event shall any Transfer release or relieve Tenant
or any Guarantors from any obligations under this Lease.
XIV. LIENS.
Tenant will not permit any mechanic's liens or other liens to be placed
upon the Premises or Tenant's leasehold interest therein, the Building, or the
Property. Landlord's title to the Building and Property is and always shall be
paramount to the interest of Tenant, and nothing herein contained shall empower
Tenant to do any act that can, shall or may encumber Landlord's title. In the
event any such lien does attach, Tenant shall, within twenty (20) days of notice
of the filing of said lien, either discharge or bond over such lien to the
satisfaction of Landlord and Landlord's Mortgagee (as hereinafter defined), and
in such a manner as to remove the lien as an encumbrance against the Building
and Property. If Tenant shall fail to so discharge or bond over such lien, then,
in addition to any other right or remedy of Landlord, Landlord may, but shall
not be obligated to bond over or discharge the same. Any amount paid by Landlord
for any of the aforesaid purposes, including reasonable attorneys' fees (if and
to the
22
extent permitted by law) shall be paid by Tenant to Landlord on demand as
Additional Base Rental. Landlord shall have the right to post and keep posted on
the Premises any notices that may be provided by law or which Landlord may deem
to be proper for the protection of Landlord, the Premises and the Building from
such liens.
XV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent caused by the negligence or willful
misconduct of Landlord or any Landlord Related Parties (defined
below), Tenant shall indemnify, defend and hold Landlord, its
trustees, members, principals, beneficiaries, partners, officers,
directors, employees, Mortgagee(s) (defined in Article XXX) and
agents ("Landlord Related Parties") harmless against and from all
liabilities, obligations, damages, penalties, claims, actions,
costs, charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and to
the extent permitted by Law), which may be imposed upon, incurred
by or asserted against Landlord or any of the Landlord Related
Parties and arising out of or in connection with any damage or
injury occurring in the Premises or any acts or omissions
(including violations of Law) of Tenant, the Tenant Related
Parties (defined below) or any of Tenant's transferees,
contractors or licensees.
B. Except to the extent caused by the negligence or willful
misconduct of Tenant or any Tenant Related Parties (defined
below), Landlord shall indemnify, defend and hold Tenant, its
trustees, members, principals, beneficiaries, partners, officers,
directors, employees and agents ("Tenant Related Parties")
harmless against and from all liabilities, obligations, damages,
penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees and
other professional fees (if and to the extent permitted by Law),
which may be imposed upon, incurred by or asserted against Tenant
or any of the Tenant Related Parties and arising out of or in
connection with the acts or omissions (including violations of
Law) of Landlord, the Landlord Related Parties or any of
Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable for,
and Tenant hereby waives, all claims for loss or damage to
Tenant's business or damage to person or property sustained by
Tenant or any person claiming by, through or under Tenant
[including Tenant's principals, agents and employees
(collectively, the "Tenant Related Parties")] resulting from any
accident or occurrence in, on or about the Premises, the Building
or the Property, including, without limitation, claims for loss,
theft or damage resulting from: (1) the Premises, Building, or
Property, or any equipment or appurtenances becoming out of
repair; (2) wind or weather; (3) any defect in or failure to
operate, for whatever reason, any sprinkler, heating or
air-conditioning equipment, electric wiring, gas, water or steam
pipes; (4) broken glass; (5) the backing up of any sewer pipe or
downspout; (6) the bursting, leaking or running of any tank, water
closet, drain or other pipe; (7) the escape of steam or water; (8)
water, snow or ice being upon or coming through the roof,
skylight, stairs, doorways, windows, walks or any other place upon
or near the Building; (9) the falling of any fixture, plaster,
tile or other material; (10) any act, omission or negligence of
other tenants, licensees or any other persons (not including
Landlord's employees or agents acting in such capacity) or
occupants of the Building or of adjoining or contiguous buildings,
or owners of adjacent or contiguous property or the public, or by
construction of any private, public or quasi-public work; or (11)
any other cause of any nature except, as to items 1-9, where such
loss or damage is due to Landlord's negligent or willful failure
to make repairs required to be made pursuant to other provisions
of this Lease, after the expiration of a reasonable time after
written notice to Landlord of the need for such repairs. To the
maximum extent permitted by law, Tenant agrees to use and occupy
the Premises, and to use such other portions of the Building as
Tenant is herein given the right to use, at Tenant's own risk.
XVI. TENANT'S INSURANCE.
A. At all times commencing on and after the earlier of the
Commencement Date and the date Tenant or its agents, employees
or contractors enters the Premises for any purpose, Tenant
shall carry and maintain, at its sole cost and expense:
23
1. Commercial General Liability Insurance applicable to the
Premises and its appurtenances providing, on an occurrence
basis, a minimum combined single limit of Two Million
Dollars ($2,000,000.00), with a contractual liability
endorsement covering Tenant's indemnity obligations under
this Lease.
2. All Risks of Physical Loss Insurance written at replacement
cost value and with a replacement cost endorsement covering
all of Tenant's Property in the Premises.
3. Workers' Compensation Insurance as required by the state in
which the Premises is located and in amounts as may be
required by applicable statute, and Employers' Liability
Coverage of One Million Dollars ($1,000,000.00) per
occurrence.
4. Whenever good business practice, in Landlord's reasonable
judgment, indicates the need of additional insurance
coverage or different types of insurance in connection with
the Premises or Tenant's use and occupancy thereof, Tenant
shall, upon request, obtain such insurance at Tenant's
expense and provide Landlord with evidence thereof.
B. Except for items for which Landlord is responsible under the Work
Letter Agreement, before any repairs, alterations, additions,
improvements, or construction are undertaken by or on behalf of
Tenant, Tenant shall carry and maintain, at its expense, or Tenant
shall require any contractor performing work on the Premises to
carry and maintain, at no expense to Landlord, in addition to
Workers' Compensation Insurance as required by the jurisdiction in
which the Building is located, All Risk Builder's Risk Insurance
in the amount of the replacement cost of any alterations,
additions or improvements (or such other amount reasonably
required by Landlord) and Commercial General Liability Insurance
(including, without limitation, Contractor's Liability coverage,
Contractual Liability coverage and Completed Operations coverage,)
written on an occurrence basis with a minimum combined single
limit of Two Million Dollars ($2,000,000.00) and adding "the named
Landlord hereunder (or any successor thereto), Equity Office
Properties Trust, a Maryland real estate investment trust, EOP
Operating Limited Partnership, a Delaware limited partnership, and
their respective members, principals, beneficiaries, partners,
officers, directors, employees, agents and any Mortgagee(s)", and
other designees of Landlord as the interest of such designees
shall appear, as additional insureds (collectively referred to as
the "Additional Insureds").
C. Any company writing any insurance which Tenant is required to
maintain or cause to be maintained pursuant to the terms of this
Lease (all such insurance as well as any other insurance
pertaining to the Premises or the operation of Tenant's business
therein being referred to as "Tenant's Insurance"), as well as the
form of such insurance, shall at all times be subject to
Landlord's reasonable approval, and each such insurance company
shall have an A.M. Best rating of "A-" or better and shall be
licensed and qualified to do business in the state in which the
Premises is located. All policies evidencing Tenant's Insurance
(except for Workers' Compensation Insurance) shall specify Tenant
as named insured and the Additional Insureds as additional
insureds. Provided that the coverage afforded Landlord and any
designees of Landlord shall not be reduced or otherwise adversely
affected, all of Tenant's Insurance may be carried under a blanket
policy covering the Premises and any other of Tenant's locations.
All policies of Tenant's Insurance shall contain endorsements that
the insurer(s) will give to Landlord and its designees at least
thirty (30) days' advance written notice of any change,
cancellation, termination or lapse of said insurance. Tenant shall
be solely responsible for payment of premiums for all of Tenant's
Insurance. Tenant shall deliver to Landlord at least fifteen (15)
days prior to the time Tenant's Insurance is first required to be
carried by Tenant, and upon renewals at least fifteen (15) days
prior to the expiration of any such insurance coverage, a
certificate of insurance of all policies procured by Tenant in
compliance with its obligations under this Lease. The limits of
Tenant's Insurance shall in no event limit Tenant's liability
under this Lease.
24
D. Tenant shall not do or fail to do anything in, upon or about the
Premises which will: (1) violate the terms of any of Landlord's
insurance policies; (2) prevent Landlord from obtaining policies
of insurance acceptable to Landlord or any Mortgagees; or (3)
result in an increase in the rate of any insurance on the
Premises, the Building, any other property of Landlord or of
others within the Building. In the event of the occurrence of any
of the events set forth in this Section, Tenant shall pay Landlord
upon demand, as Additional Base Rental, the cost of the amount of
any increase in any such insurance premium, provided that the
acceptance by Landlord of such payment shall not be construed to
be a waiver of any rights by Landlord in connection with a default
by Tenant under the Lease. If Tenant fails to obtain the insurance
coverage required by this Lease, Landlord may, at its option,
obtain such insurance for Tenant, and Tenant shall pay, as
Additional Base Rental, the cost of all premiums thereon and all
of Landlord's costs associated therewith.
XVII. SUBROGATION.
Notwithstanding anything in this Lease to the contrary, Landlord and
Tenant shall cause their respective insurance carriers to waive any and all
rights of recovery, claim, action or causes of action against the other and
their respective trustees, principals, beneficiaries, partners, officers,
directors, agents, and employees, for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to Tenant's Property, the Building, the
Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.
XVIII. LANDLORD'S INSURANCE.
Landlord shall maintain property insurance on the Building in such
amounts as Landlord reasonably elects, provided that, during the Lease Term
Landlord shall maintain standard so-called "all risk" property insurance,
covering the Building in an amount equal to the replacement cost thereof
(including Leasehold Improvements approved by Landlord but excluding foundations
and footings) at the time in question. Landlord also shall maintain Commercial
General Liability coverage written on an occurrence basis with a minimum
combined single limit of at least Two Million Dollars ($2,000,000.00). The cost
of such insurance shall be included as a part of the Basic Costs, and payments
for losses and recoveries thereunder shall be made solely to Landlord or the
Mortgagees of Landlord as their interests shall appear.
XIX. CASUALTY DAMAGE.
A. If the Premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give prompt written notice thereof to
Landlord. In case the Building shall be so damaged that in
Landlord's reasonable judgment, substantial alteration or
reconstruction of the Building shall be required (whether or not
the Premises has been damaged by such casualty) or in the event
Landlord will not be permitted by applicable law to rebuild the
Building in substantially the same form as existed prior to the
fire or casualty or in the event the Premises has been materially
damaged and there is less than two (2) years of the Lease Term
remaining on the date of such casualty or in the event any
Mortgagee should require that the insurance proceeds payable as a
result of a casualty be applied to the payment of the mortgage
debt or in the event of any material uninsured loss to the
Building, Landlord may, at its option, terminate this Lease by
notifying Tenant in writing of such termination within ninety (90)
days after the date of such casualty. Such termination shall be
effective as of the date of fire or casualty, with respect to any
portion of the Premises that was rendered untenantable, and the
effective date of termination specified in Landlord's notice, with
respect to any portion of the Premises that remained tenantable.
If Landlord does not elect to terminate this Lease, Landlord shall
commence and proceed with reasonable diligence to restore the
Building (provided that Landlord shall not be required to restore
any unleased premises in the Building) and the Leasehold
Improvements (but excluding any improvements, alterations or
additions made by Tenant in violation of this Lease) located
within the Premises, if any, which Landlord has
25
insured (or is required to insure) to substantially the same
condition they were in immediately prior to the happening of the
casualty. Notwithstanding the foregoing, Landlord's obligation to
restore the Building, and the Leasehold Improvements, if any,
shall not require Landlord to expend for such repair and
restoration work more than the insurance proceeds actually
received by the Landlord as a result of the casualty. When repairs
to the Premises have been completed by Landlord, Tenant shall
complete the restoration or replacement of all Tenant's Property
necessary to permit Tenant's reoccupancy of the Premises, and
Tenant shall present Landlord with evidence satisfactory to
Landlord of Tenant's ability to pay such costs prior to Landlord's
commencement of repair and restoration of the Premises. Landlord
shall not be liable for any inconvenience or annoyance to Tenant
or injury to the business of Tenant resulting in any way from such
damage or the repair thereof, except that, subject to the
provisions of the next sentence, Landlord shall allow Tenant a
fair diminution of Rent on a per diem basis during the time and to
the extent any damage to the Premises causes the Premises to be
rendered untenantable and not used by Tenant. If the Premises or
any other portion of the Building is damaged by fire or other
casualty resulting from the negligence of Tenant or any Tenant
Related Parties, the Rent hereunder shall not be diminished during
any period during which the Premises, or any portion thereof, is
untenantable (except to the extent Landlord is entitled to be
reimbursed by the proceeds of any rental interruption insurance),
and Tenant shall be liable to Landlord for the cost of the repair
and restoration of the Building caused thereby to the extent such
cost and expense is not covered by insurance proceeds. Landlord
and Tenant hereby waive the provisions of any law from time to
time in effect during the Lease Term relating to the effect upon
leases of partial or total destruction of leased property.
Landlord and Tenant agree that their respective rights in the
event of any damage to or destruction of the Premises shall be
those specifically set forth herein.
B. Notwithstanding anything in this Article XIX to the contrary, if
all or any portion of the Premises shall be made untenantable by a
fire or other casualty, Landlord shall, with reasonable
promptness, cause an architect or general contractor selected by
Landlord to estimate the amount of time required to substantially
complete repair and restoration of the Premises and make the
Premises tenantable again, using standard working methods (the
"Completion Estimate"). If the Completion Estimate indicates that
the Premises cannot be made tenantable within one hundred eighty
(180) days from the date the repair and restoration is started,
either party shall have the right to terminate this Lease by
giving written notice to the other of such election within ten
(10) days after its receipt of the Completion Estimate. Tenant,
however, shall not have the right to terminate this Lease in the
event that the fire or casualty in question was caused by the
negligence or intentional misconduct of Tenant or any Tenant
Related Parties. If the Completion Estimate indicates that the
Premises can be made tenantable within one hundred eighty (180)
days from the date the repair and restoration is started and
Landlord has not otherwise exercised its right to terminate the
Lease pursuant to the terms hereof, or if the Completion Estimate
indicates that the Premises cannot be made tenantable within one
hundred eighty (180) days but neither party terminates this Lease
pursuant to this Article XIX, Landlord shall proceed with
reasonable promptness to repair and restore the Premises.
Notwithstanding the foregoing, if Tenant was entitled to but
elected not to exercise its right to terminate the Lease and
Landlord does not substantially complete the repair and
restoration of the Premises within two (2) months after the
expiration of the estimated period of time set forth in the
Completion Estimate, which period shall be extended to the extent
of any Reconstruction Delays, then Tenant may terminate this Lease
by written notice to Landlord within fifteen (15) days after the
expiration of such period, as the same may be extended. For
purposes of this Lease, the term "Reconstruction Delays" shall
mean: (i) any delays caused by the insurance adjustment process;
(ii) any delays caused by Tenant; and (iii) any delays caused by
events of Force Majeure. It is agreed that Reconstruction Delays
attributable to items (i) or (iii) above shall not exceed ninety
(90) days for each such type of delay.
C. Landlord shall not terminate this Lease in accordance with this
Article XIX unless it also terminates the leases of all similarly
affected office tenants in the Building.
26
In determining whether other tenants are similarly affected,
Landlord shall be entitled to consider all relevant factors such
as the extent of damage, the time to rebuild, the availability of
insurance proceeds and the rights of the tenants in question to
impose penalties upon Landlord (including the right to terminate)
if the repairs are not completed within a specified period of
time. Landlord shall not, however, be entitled to consider the
rental rates payable under the leases in question or the length of
time remaining under the leases in question (unless there is less
than two (2) years remaining on the Lease Term hereof) in its
determination of whether to terminate or rebuild.
XX. DEMOLITION.
INTENTIONALLY OMITTED.
XXI. CONDEMNATION.
Either party may terminate this Lease if the whole or any material part
of the Premises, or any portion of the Building or Property such that the Tenant
no longer has safe access to the Premises, shall be taken or condemned for any
public or quasi-public use under law, by eminent domain or private purchase in
lieu thereof (a "Taking"). Landlord shall also have the right to terminate this
Lease if there is a Taking of any portion of the Building or Property which
would leave the remainder of the Building unsuitable for use as an office
building in a manner comparable to the Building's use prior to the Taking. In
order to exercise its right to terminate the Lease, Landlord or Tenant, as the
case may be, must provide written notice of termination to the other within
forty five (45) days after the terminating party first receives notice of the
Taking. Any such termination shall be effective as of the date the physical
taking of the Premises or the portion of the Building or Property occurs. If
this Lease is not terminated, the Rentable Area of the Building, the Rentable
Area of the Premises and Tenant's Pro Rata Share shall, if applicable, be
appropriately adjusted. In addition, Rent for any portion of the Premises taken
or condemned shall be abated during the unexpired Lease Term effective when the
physical taking of the portion of the Premises occurs. All compensation awarded
for any such taking or condemnation, or sale proceeds in lieu thereof, shall be
the property of Landlord, and Tenant shall have no claim thereto, the same being
hereby expressly waived by Tenant, except for any portions of such award or
proceeds which are specifically allocated by the condemning or purchasing party
for the taking of or damage to trade fixtures of Tenant, which Tenant
specifically reserves to itself.
XXII. EVENTS OF DEFAULT.
The following events shall be deemed to be events of default under this
Lease:
A. Tenant shall fail to pay when due any Base Rental, Additional Base
Rental or other Rent under this Lease and such failure shall
continue for five (5) Business Days after Tenant's receipt of
written notice from Landlord (hereinafter sometimes referred to as
a "Monetary Default").
B. Any failure by Tenant (other than a Monetary Default) to comply
with any term, provision or covenant of this Lease, including,
without limitation, the rules and regulations, which failure is
not cured within twenty (20) days after delivery to Tenant of
notice of the occurrence of such failure (or such longer period of
time as may be reasonably necessary to cure (not to exceed 60
days), provided that Tenant commences to cure such default within
twenty (20) days after notice from Landlord and, from time to time
upon request of Landlord, furnishes Landlord with evidence that
demonstrates, in Landlord's reasonable judgment, that Tenant is
diligently pursuing a course that will remedy such failure),
provided that if any such failure creates a hazardous condition,
such failure must be cured immediately. Notwithstanding the
foregoing, if Tenant fails to comply with any particular provision
or covenant of this Lease, including, without limitation, Tenant's
obligation to pay Rent when due, on three (3) occasions during any
twelve (12) month period, any subsequent violation of such
provision or covenant shall be considered to be an incurable
default by Tenant.
C. Tenant or any Guarantor shall become insolvent, or shall make a
transfer in fraud of creditors, or shall file bankruptcy or shall
make a general assignment for the
27
benefit of creditors, or Tenant or any Guarantor shall admit in
writing its inability to pay its debts as they become due.
D. Tenant or any Guarantor shall file a petition under any section or
chapter of the United States Bankruptcy Code, as amended,
pertaining to bankruptcy, or under any similar law or statute of
the United States or any State thereof, or Tenant or any Guarantor
shall be adjudged bankrupt or insolvent in proceedings filed
against Tenant or any Guarantor thereunder; or a petition or
answer proposing the adjudication of Tenant or any Guarantor as a
debtor or its reorganization under any present or future federal
or state bankruptcy or similar law shall be filed in any court and
such petition or answer shall not be discharged or denied within
sixty (60) days after the filing thereof.
E. A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any Guarantor or of the Premises or
of any of Tenant's Property located thereon in any proceeding
brought by Tenant or any Guarantor, or any such receiver or
trustee shall be appointed in any proceeding brought against
Tenant or any Guarantor and shall not be discharged within sixty
(60) days after such appointment or Tenant or such Guarantor shall
consent to or acquiesce in such appointment.
F. The leasehold estate hereunder shall be taken on execution or
other process of law or equity in any action against Tenant.
G. INTENTIONALLY OMITTED.
H. INTENTIONALLY OMITTED.
I. The liquidation, termination, dissolution, forfeiture of right to
do business, or death of Tenant or any Guarantor.
XXIII. REMEDIES.
A. Upon the occurrence of any event or events of default under this
Lease, Landlord shall have the option to pursue any one or more of
the following remedies without any notice (except as expressly
prescribed in Article XXII above) or demand whatsoever (and
without limiting the generality of the foregoing, Tenant hereby
specifically waives notice and demand for payment of Rent or other
obligations due [except as expressly prescribed in Article XXII
above] and waives any and all other notices or demand requirements
imposed by applicable law):
1. Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant
fails to surrender the Premises upon termination of the
Lease hereunder, Landlord may without prejudice to any
other remedy which it may have, enter upon and take
possession of the Premises and expel or remove Tenant and
any other person who may be occupying said Premises, or any
part thereof, and Tenant hereby agrees to pay to Landlord
on demand the amount of all loss and damage, including
consequential damage, which Landlord may suffer by reason
of such termination, whether through inability to relet the
Premises on satisfactory terms or otherwise, specifically
including but not limited to all Costs of Reletting
(hereinafter defined) and any deficiency that may arise by
reason of any reletting or failure to relet.
2. Enter upon and take possession of the Premises and expel or
remove Tenant or any other person who may be occupying said
Premises, or any part thereof, by process of law, without
having any civil or criminal liability therefor and without
terminating this Lease. Landlord may (but shall be under no
obligation to, except as otherwise specifically provided in
this subsection 2) relet the Premises or any part thereof
for the account of Tenant, in the name of Tenant or
Landlord or otherwise, without notice to Tenant for such
term or terms which may be greater or less than the period
which would otherwise have constituted the balance of the
Lease Term and on such conditions (which may include
concessions, free rent and alterations of the Premises) and
for such uses as Landlord in its
28
absolute discretion may determine, and Landlord may collect
and receive any rents payable by reason of such reletting.
Tenant agrees to pay Landlord on demand all Costs of
Reletting and any deficiency that may arise by reason of
such reletting or failure to relet. Landlord shall not be
responsible or liable for any failure to relet the Premises
or any part thereof or for any failure to collect any Rent
due upon any such reletting. No such re-entry or taking of
possession of the Premises by Landlord shall be construed
as an election on Landlord's part to terminate this Lease
unless a written notice of such termination is given to
Tenant. Landlord agrees to use reasonable efforts to
mitigate damages, provided that such reasonable efforts
shall not require Landlord to relet the Premises in
preference to any other space in the Building or to relet
the Premises to any party that Landlord could reasonably
reject as a transferee pursuant to Article XIII hereof.
3. Enter upon the Premises without having any civil or
criminal liability therefor, and do whatever Tenant is
obligated to do under the terms of this Lease, and Tenant
agrees to reimburse Landlord on demand for any reasonable
expense which Landlord may incur in thus affecting
compliance with Tenant's obligations under this Lease
together with interest at the lesser of a per annum rate
equal to: (a) the Maximum Rate, or (b) the Prime Rate plus
four percent (4%).
4. In order to regain possession of the Premises and to deny
Tenant access thereto in any instance in which Landlord has
terminated this Lease or Tenant's right to possession, or
to limit access to the Premises in accordance with local
law in the event of a default by Tenant, Landlord or its
agent may, at the reasonable expense and liability of the
Tenant, alter or change any or all locks or other security
devices controlling access to the Premises without posting
or giving notice of any kind to Tenant. Landlord shall have
no obligation to provide Tenant a key or grant Tenant
access to the Premises so long as Tenant is in default
under this Lease beyond the applicable notice and cure
period. Tenant shall not be entitled to recover possession
of the Premises, terminate this Lease, or recover any
actual, incidental, consequential, punitive, statutory or
other damages or award of attorneys' fees, by reason of
Landlord's alteration or change of any lock or other
security device. Landlord may, without notice, remove and
either dispose of or store, at Tenant's reasonable expense,
any property belonging to Tenant that remains in the
Premises after Landlord has regained possession thereof.
5. Terminate this Lease, in which event, Tenant shall
immediately surrender the Premises to Landlord and pay to
Landlord the sum of: (a) all Rent accrued hereunder through
the date of termination, and (b) an amount equal to: the
total Rent that Tenant would have been required to pay for
the remainder of the Lease Term discounted to present value
at the Prime Rate then in effect, minus the then present
fair rental value of the Premises for the remainder of the
Lease Term, similarly discounted, after deducting all
anticipated Costs of Reletting (as defined below).
B. For purposes of this Lease, the term "Costs of Reletting" shall
mean all reasonable costs and expenses incurred by Landlord in
connection with the reletting of the Premises, including without
limitation, the cost of cleaning, renovation, repairs, decoration
and alteration of the Premises for a new tenant or tenants,
advertisement, marketing, brokerage and legal fees (if and to the
extent permitted by law), the cost of protecting or caring for the
Premises while vacant, the cost of removing and storing any
property located on the Premises, any increase in insurance
premiums caused by the vacancy of the Premises and any other
out-of-pocket expenses incurred by Landlord including tenant
incentives, allowances and inducements.
C. Except as otherwise herein provided, no repossession or
re-entering of the Premises or any part thereof pursuant to
Article XXIII hereof or otherwise shall relieve Tenant or any
Guarantor of its liabilities and obligations hereunder, all of
which shall survive such repossession or re-entering.
Notwithstanding any such
29
repossession or re-entering by reason of the occurrence of an
event of default, Tenant will pay to Landlord the Rent required to
be paid by Tenant pursuant to this Lease.
D. If Landlord declares Tenant to be in default after expiration of
the applicable notice and cure period, Landlord shall be entitled
to receive interest on any unpaid and overdue item of Rent at a
rate equal to the lesser of (i) the Maximum Rate, or (ii) the
Prime Rate plus four percent (4%) per annum. No right or remedy
herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy, and each and every right
and remedy shall be cumulative and in addition to any other right
or remedy given hereunder or now or hereafter existing by
agreement, applicable law or in equity. In addition to other
remedies provided in this Lease, Landlord shall be entitled, to
the extent permitted by applicable law, to injunctive relief, or
to a decree compelling performance of any of the covenants,
agreements, conditions or provisions of this Lease, or to any
other remedy allowed to Landlord at law or in equity. Forbearance
by Landlord to enforce one or more of the remedies herein provided
upon an event of default shall not be deemed or construed to
constitute a waiver of such default.
E. This Article XXIII shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
XXIV. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD HEREUNDER) TO TENANT SHALL
BE LIMITED TO THE INTEREST OF LANDLORD IN THE BUILDING, AND TENANT AGREES TO
LOOK SOLELY TO LANDLORD'S INTEREST IN THE BUILDING FOR THE RECOVERY OF ANY
JUDGMENT OR AWARD AGAINST THE LANDLORD, IT BEING INTENDED THAT NEITHER LANDLORD
NOR ANY MEMBER, PRINCIPAL, PARTNER, SHAREHOLDER, OFFICER, DIRECTOR OR
BENEFICIARY OF LANDLORD SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES
WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS ON THE
PROPERTY, BUILDING OR PREMISES NOTICE AND REASONABLE TIME TO CURE SUCH ALLEGED
DEFAULT BY LANDLORD.
XXV. NO WAIVER.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys to
the Premises shall not constitute an acceptance or surrender of the Premises.
XXVI. EVENT OF BANKRUPTCY.
In addition to, and in no way limiting the other remedies set forth
herein, Landlord and Tenant agree that if Tenant ever becomes the subject of a
voluntary or involuntary bankruptcy, reorganization, composition, or other
similar type proceeding under the federal bankruptcy laws, as now enacted or
hereinafter amended, then:
A. "Adequate protection" of Landlord's interest in the Premises
pursuant to the provisions of Section 361 and 363 (or their
successor sections) of the Bankruptcy Code, 11 U.S.C. Section 101
et seq., (such Bankruptcy Code as amended from time to time being
herein referred to as the "Bankruptcy Code"), prior to assumption
and/or assignment of the Lease by Tenant shall include, but not be
limited to all (or any part) of the following:
1. the continued payment by Tenant of the Base Rental and all
other Rent due and owing hereunder and the performance of
all other covenants and obligations hereunder by Tenant;
30
2. the furnishing of an additional/new security deposit by
Tenant in the amount of three (3) times the then current
monthly Base Rental.
B. "Adequate assurance of future performance" by Tenant and/or any
assignee of Tenant pursuant to Bankruptcy Code Section 365 will
include (but not be limited to) payment of an additional/new
Security Deposit in the amount of three (3) times the then current
monthly Base Rental payable hereunder.
C. Any person or entity to which this Lease is assigned pursuant to
the provisions of the Bankruptcy Code, shall be deemed without
further act or deed to have assumed all of the obligations of
Tenant arising under this Lease on and after the effective date of
such assignment. Any such assignee shall, upon demand by Landlord,
execute and deliver to Landlord an instrument confirming such
assumption of liability.
D. Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of the Landlord under
this Lease, whether or not expressly denominated as "Rent," shall
constitute "rent" for the purposes of Section 502(b) (6) of the
Bankruptcy Code.
E. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise to be delivered to Landlord
(including Base Rentals and other Rent hereunder), shall be and
remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the bankruptcy estate of Tenant. Any and
all monies or other considerations constituting Landlord's
property under the preceding sentence not paid or delivered to
Landlord shall be held in trust by Tenant or Tenant's bankruptcy
estate for the benefit of Landlord and shall be promptly paid to
or turned over to Landlord.
F. If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code to any person or
entity who shall have made a bona fide offer to accept an
assignment of this Lease on terms acceptable to the Tenant, then
notice of such proposed offer/assignment, setting forth: (1) the
name and address of such person or entity, (2) all of the terms
and conditions of such offer, and (3) the adequate assurance to be
provided Landlord to assure such person's or entity's future
performance under the Lease, shall be given to Landlord by Tenant
no later than twenty (20) days after receipt by Tenant, but in any
event no later than ten (10) days prior to the date that Tenant
shall make application to a court of competent jurisdiction for
authority and approval to enter into such assumption and
assignment, and Landlord shall thereupon have the prior right and
option, to be exercised by notice to Tenant given at any time
prior to the effective date of such proposed assignment, to accept
an assignment of this Lease upon the same terms and conditions and
for the same consideration, if any, as the bona fide offer made by
such persons or entity, less any brokerage commission which may be
payable out of the consideration to be paid by such person for the
assignment of this Lease.
G. To the extent permitted by law, Landlord and Tenant agree that
this Lease is a contract under which applicable law excuses
Landlord from accepting performance from (or rendering performance
to) any person or entity other than Tenant within the meaning of
Sections 365(c) and 365(e) (2) of the Bankruptcy Code.
XXVII. WAIVER OF JURY TRIAL.
Landlord and Tenant hereby waive any right to a trial by jury in any
action or proceeding based upon, or related to, the subject matter of this
Lease. This waiver is knowingly, intentionally, and voluntarily made by Tenant,
and Tenant acknowledges that neither Landlord nor any person acting on behalf of
Landlord has made any representations of fact to induce this waiver of trial by
jury or in any way to modify or nullify its effect. Tenant further acknowledges
that it has been represented (or has had the opportunity to be represented) in
the signing of this Lease and in the making of this waiver by independent legal
counsel, selected of its own free will, and that it has had the opportunity to
discuss this waiver with counsel.
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XXVIII. RELOCATION.
A. Landlord, at its expense at any time before or during the Lease
Term (but not more than twice), shall be entitled to cause Tenant
to relocate from the Premises to space containing not less than
95% of the Rentable Area of the Premises and a comparable layout,
leasehold improvements and finishes as the Premises prior to the
relocation (the "Relocation Space") within the Building or
adjacent buildings within the same project at any time upon ninety
(90) days' prior written notice to Tenant. Such a relocation shall
not affect this Lease except that from and after the date of such
relocation, "Premises" shall refer to the Relocation Space into
which Tenant has been moved, rather than the original Premises as
herein defined, and the Base Rental shall be adjusted so that
immediately following such relocation the Base Rental for the
Relocation Space per annum on a per square foot of Rentable Area
basis shall be the same as the Base Rental per annum immediately
prior to such relocation for the original Premises on a per square
foot of Rentable Area basis, provided that the total monthly Base
Rental for the Relocation Space shall in no event exceed the Base
Rental for the Premises. Tenant's Pro Rata Share shall also be
adjusted in accordance with the formula set forth in this Lease,
provided that the Additional Base Rental for the Relocation Space
shall not exceed the Additional Base Rental for the Premises.
Landlord agrees to reimburse Tenant for all reasonable
out-of-pocket costs incurred by Tenant in connection with the
Relocation and not paid directly by Landlord, including the cost
of moving furniture and equipment, installing cabling and wiring,
and reprinting existing stationery and business cards and similar
items of expense.
B. Notwithstanding the foregoing, if Landlord provides Tenant with a
notice of relocation intending to relocate the Premises to any
location other than the top three (3) floors in the Phase I
Building or Phase II Building, Tenant shall have the right to
terminate this Lease by giving written notice of termination to
Landlord within twenty (20) days after the date of Landlord's
notice of relocation to Tenant. Such termination shall be
effective sixty (60) days after the date of Landlord's notice of
relocation, provided that Landlord, within ten (10) days after
receipt of Tenant's notice of termination, shall have the right to
withdraw its notice of relocation. In such event, this Lease shall
continue in full force and effect as if Landlord had never
provided Tenant with notice of relocation.
XXIX. HOLDING OVER.
In the event of holding over by Tenant after expiration or other
termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Articles XXII and XXIII hereof, occupancy of the Premises subsequent to such
termination or expiration shall be that of a tenancy at sufferance and in no
event for month-to-month or year-to-year. Tenant shall, throughout the entire
holdover period, be subject to all the terms and provisions of this Lease and
shall pay for its use and occupancy an amount (on a per month basis without
reduction for any partial months during any such holdover) equal to one hundred
fifty percent (150%) of the Base Rental and Additional Base Rental due for the
period immediately preceding such holding over, provided that in no event shall
Base Rental and Additional Base Rental during the holdover period be less than
the fair market rental for the Premises. No holding over by Tenant or payments
of money by Tenant to Landlord after the expiration of the term of this Lease
shall be construed to extend the Lease Term, to create a tenancy-at-will under
Georgia law, or prevent Landlord from recovery of immediate possession of the
Premises by summary proceedings or otherwise. In addition to the obligation to
pay the amounts set forth above during any such holdover period, Tenant also
shall be liable to Landlord for all damage, including any consequential damage,
which Landlord may suffer by reason of any holding over by Tenant, and Tenant
shall indemnify Landlord against any and all claims made by any other tenant or
prospective tenant against Landlord for delay by Landlord in delivering
possession of the Premises to such other tenant or prospective tenant.
Notwithstanding the foregoing, Tenant shall not be liable for consequential
damages unless: (1) Landlord notifies Tenant that it has entered into a lease
for the Premises or has received a bona fide offer to lease the Premises; and
(2) Tenant fails to vacate the Premises within ten (10) days after the date of
Landlord's notice.
XXX. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
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A. Tenant accepts this Lease subject and subordinate to any
mortgage(s), deed(s) of trust, ground lease(s) or other lien(s)
now or subsequently arising upon the Premises, the Building or the
Property, and to renewals, modifications, refinancings and
extensions thereof (collectively referred to as a "Mortgage"). The
party having the benefit of a Mortgage shall be referred to as a
"Mortgagee". This clause shall be self-operative, but upon request
from a Mortgagee, Tenant shall execute a commercially reasonable
subordination agreement in favor of the Mortgagee. In lieu of
having the Mortgage be superior to this Lease, a Mortgagee shall
have the right at any time to subordinate its Mortgage to this
Lease. If requested by a successor-in-interest to all or a part of
Landlord's interest in the Lease, Tenant shall, without charge,
attorn to the successor-in-interest. Notwithstanding the
foregoing, upon written request by Tenant, Landlord will use
reasonable efforts to obtain a non-disturbance, subordination and
attornment agreement from Landlord's then current Mortgagee on
such Mortgagee's then current standard form of agreement.
"Reasonable efforts" of Landlord shall not require Landlord to
incur any cost, expense or liability to obtain such agreement, it
being agreed that Tenant shall be responsible for any fee or
review costs charged by the Mortgagee. Upon request of Landlord,
Tenant will execute the Mortgagee's form of non-disturbance,
subordination and attornment agreement and return the same to
Landlord for execution by the Mortgagee. Landlord's failure to
obtain a non-disturbance, subordination and attornment agreement
for Tenant shall have no effect on the rights, obligations and
liabilities of Landlord and Tenant or be considered to be a
default by Landlord hereunder. Landlord hereby represents and
covenants to Tenant that, as of the date of this Lease, the
Building is not subject to a loan secured by a Mortgage.
B. Landlord and Tenant shall each, within 10 days after receipt of a
written request from the other, execute and deliver an estoppel
certificate to those parties as are reasonably requested by the
other (including a Mortgagee or prospective purchaser). The
estoppel certificate shall include a statement certifying that
this Lease is unmodified (except as identified in the estoppel
certificate) and in full force and effect, describing the dates to
which Rent and other charges have been paid, representing that, to
such party's actual knowledge, there is no default (or stating the
nature of the alleged default) and indicating other matters with
respect to the Lease that may reasonably be requested.
XXXI. ATTORNEYS' FEES.
If either party institutes a suit against the other for violation of or
to enforce any covenant or condition of this Lease, or if either party
intervenes in any suit in which the other is a party to enforce or protect its
interest or rights, the prevailing party shall be entitled to all of its costs
and expenses, including, without limitation, reasonable attorneys' fees.
XXXII. NOTICE.
Whenever any demand, request, approval, consent or notice ("Notice")
shall or may be given to either of the parties by the other, each such Notice
shall be in writing and shall be sent by hand delivery or by registered or
certified mail with return receipt requested, or sent by overnight courier
service (such as Federal Express) at the respective addresses of the parties for
notices as set forth in Section I.A.10. of this Lease, provided that if Tenant
has vacated the Premises or is in default of this Lease Landlord may serve
Notice by any manner permitted by law. Any Notice under this Lease delivered by
registered or certified mail shall be deemed to have been given, delivered,
received and effective on the earlier of (A) the third day following the day on
which the same shall have been mailed with sufficient postage prepaid or (B) the
delivery date indicated on the return receipt. Notice effected by hand delivery
shall be deemed to have been received upon the earlier of actual receipt or
refusal thereof. Notice sent by overnight courier service shall be deemed given,
delivered, received and effective upon the day after such notice is delivered to
or picked up by the overnight courier service. Either party may, at any time,
change its Notice Address by giving the other party Notice stating the change
and setting forth the new address.
XXXIII. LANDLORD'S LIEN.
INTENTIONALLY OMITTED.
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XXXIV. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms,
Building risers or similar areas that are used by Landlord for the provision of
Building services, (4) rights to the land and improvements below the floor of
the Premises, (5) the improvements and air rights above the Premises, (6) the
improvements and air rights outside the demising walls of the Premises, and (7)
so long as Tenant's ability to use the Premises for the Permitted Use is not
materially affected, the areas within the Premises used for the installation of
utility lines and other installations serving occupants of the Building.
Landlord has the right to change the Building's name or address. Landlord also
has the right to make such other changes to the Property and Building as
Landlord deems appropriate, provided the changes do not materially affect
Tenant's ability to use the Premises for the Permitted Use. Landlord shall also
have the right (but not the obligation) to temporarily close the Building if
Landlord reasonably determines that there is an imminent danger of significant
damage to the Building or of personal injury to Landlord's employees or the
occupants of the Building. The circumstances under which Landlord may
temporarily close the Building shall include, without limitation, electrical
interruptions, hurricanes and civil disturbances. A closure of the Building
under such circumstances shall not constitute a constructive eviction nor
entitle Tenant to an abatement or reduction of Rent.
XXXV. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's right
of possession hereunder, Tenant shall remove all Tenant's Property from the
Premises, remove all Required Removables designated by Landlord and quit and
surrender the Premises to Landlord, broom clean, and in good order, condition
and repair, ordinary wear and tear, casualty and condemnation excepted. If
Tenant fails to remove any of Tenant's Property within two (2) days after the
termination of this Lease or Tenant's right to possession hereunder, Landlord,
at Tenant's sole cost and expense, shall be entitled to remove and/or store such
Tenant's Property and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. Tenant shall pay Landlord, upon demand, any
and all reasonable expenses caused by such removal and all storage charges
against such property so long as the same shall be in the possession of Landlord
or under the control of Landlord. In addition, if Tenant fails to remove any
Tenant's Property from the Premises or storage, as the case may be, within ten
(10) days after written notice from Landlord, Landlord, at its option, may deem
all or any part of such Tenant's Property to have been abandoned by Tenant and
title thereof shall immediately pass to Landlord.
XXXVI. MISCELLANEOUS.
A. If any term or provision of this Lease, or the application thereof
to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not
be affected thereby, and each term and provision of this Lease
shall be valid and enforced to the fullest extent permitted by
law. This Lease represents the result of negotiations between
Landlord and Tenant, each of which has been (or has had
opportunity to be) represented by counsel of its own selection,
and neither of which has acted under duress or compulsion, whether
legal, economic or otherwise. Consequently, Landlord and Tenant
agree that the language in all parts of the Lease shall in all
cases be construed as a whole according to its fair meaning and
neither strictly for nor against Landlord or Tenant.
B. Tenant agrees not to record this Lease or any memorandum hereof
without Landlord's prior written consent.
C. This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced in accordance with
the laws of the state in which the Building is located.
D. Events of "Force Majeure" shall include strikes, riots, war, acts
of God, and shortages of labor or materials. Whenever a period of
time is herein prescribed for the taking of any action by Landlord
or Tenant, as the case may be, other than
34
the payment of Rent or any other sums due hereunder, such party
shall not be liable or responsible for, and there shall be
excluded from the computation of such period of time, any delays
due to events of Force Majeure.
E. Landlord shall have the right to transfer and assign, in whole or
in part, all of its rights and obligations hereunder and in the
Building and Property referred to herein, and in such event and
upon such transfer Landlord shall be released from any further
obligations hereunder, and Tenant agrees to look solely to such
successor in interest of Landlord for the performance of such
obligations.
F. Tenant hereby represents to Landlord that it has dealt directly
with and only with the Broker as a broker in connection with this
Lease. Tenant agrees to indemnify and hold Landlord and the
Landlord Related Parties harmless from all claims of any brokers
claiming to have represented Tenant in connection with this Lease.
Landlord agrees to indemnify and hold Tenant and the Tenant
Related Parties harmless from all claims of any brokers claiming
to have represented Landlord in connection with this Lease.
Landlord agrees to pay Tenant's Broker any commission due Tenant's
Broker in connection with this Lease pursuant to the terms of a
separate written agreement between Landlord and Tenant's Broker.
G. If there is more than one Tenant, or if the Tenant is comprised of
more than one person or entity, the obligations hereunder imposed
upon Tenant shall be joint and several obligations of all such
parties. All notices, payments, and agreements given or made by,
with or to any one of such persons or entities shall be deemed to
have been given or made by, with or to all of them.
H. 1. Tenant covenants, warrants and represents that: (a) each
individual executing, attesting and/or delivering this Lease on
behalf of Tenant is authorized to do so on behalf of Tenant; (b)
this Lease is binding upon Tenant; and (c) Tenant is duly
organized and legally existing in the state of its organization
and is qualified to do business in the state in which the Premises
are located.
2. Landlord hereby covenants, warrants and represents that: (a)
each individual executing, attesting and/or delivering this Lease
on behalf of Landlord is authorized to do so on behalf of
Landlord; (b) this Lease is binding upon Landlord; and (c)
Landlord is duly organized and legally existing in the state of
its organization and is qualified to do business in the state in
which the Premises are located.
I. Tenant acknowledges that the financial capability of Tenant to
perform its obligations hereunder is material to Landlord and that
Landlord would not enter into this Lease but for its belief, based
on its review of Tenant's financial statements, that Tenant is
capable of performing such financial obligations. Tenant hereby
represents, warrants and certifies to Landlord that its financial
statements previously furnished to Landlord were at the time given
true and correct in all material respects and that there have been
no material subsequent changes thereto as of the date of this
Lease. At any time during the Lease Term, Tenant shall provide
Landlord, upon ten (10) days' prior written notice from Landlord,
with a current financial statement and financial statements of the
two (2) years prior to the current financial statement year and
such other information as Landlord or its Mortgagee may request in
order to create a "business profile" of Tenant and determine
Tenant's ability to fulfill its obligations under this Lease. Such
statement shall be prepared in accordance with generally accepted
accounting principles and certified by Tenant's chief financial
officer.
J. Except as expressly otherwise herein provided, with respect to all
required acts of Tenant, time is of the essence of this Lease.
This Lease shall create the relationship of Landlord and Tenant
between the parties hereto. Tenant has only a usufruct, not
subject to purchase or sale, which may not be assigned by Tenant
except as expressly provided in this Lease.
K. This Lease and the covenants and conditions herein contained shall
inure to the benefit of and be binding upon Landlord and Tenant
and their respective permitted successors and assigns.
35
L. Notwithstanding anything to the contrary contained in this Lease,
the expiration of the Lease Term, whether by lapse of time or
otherwise, shall not relieve Tenant from Tenant's obligations
accruing prior to the expiration of the Lease Term, and such
obligations shall survive any such expiration or other termination
of the Lease Term.
M. The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no affect upon the construction or
interpretation of any part hereof.
N. LANDLORD HAS DELIVERED A COPY OF THIS LEASE TO TENANT FOR TENANT'S
REVIEW ONLY, AND THE DELIVERY HEREOF DOES NOT CONSTITUTE AN OFFER
TO TENANT OR OPTION. THIS LEASE SHALL NOT BE EFFECTIVE UNTIL AN
ORIGINAL OF THIS LEASE EXECUTED BY BOTH LANDLORD AND TENANT AND AN
ORIGINAL GUARANTY, IF ANY, EXECUTED BY EACH GUARANTOR IS DELIVERED
TO AND ACCEPTED BY LANDLORD, AND THIS LEASE HAS BEEN APPROVED BY
LANDLORD'S MORTGAGEES, IF REQUIRED.
O. QUIET ENJOYMENT. Tenant shall, and may peacefully have, hold, and
enjoy the Premises, subject to the other terms of this Lease
(including, without limitation, Article XXX hereof), without
hindrance or molestation by Landlord or anyone claiming by,
through or under Landlord, provided that Tenant pays the Rent
herein recited to be paid by Tenant and performs all of Tenant's
covenants and agreements herein contained. This covenant and any
and all other covenants of Landlord shall be binding upon Landlord
and its successors only during its or their respective periods of
ownership of the Landlord's interest hereunder.
XXXVII. ENTIRE AGREEMENT.
This Lease Agreement, including the following Exhibits:
EXHIBIT A -Outline and Location of Premises
---------
EXHIBIT A-1 -Outline and Location of Refusal Space
-----------
EXHIBIT B -Rules and Regulations
---------
EXHIBIT C -Commencement Letter (Intentionally Omitted)
---------
EXHIBIT D -Work Letter Agreement
---------
EXHIBIT D-1 -Base Building Work in Premises
-----------
EXHIBIT E -Additional Provisions
---------
EXHIBIT F -Form of Letter of Credit
---------
EXHIBIT G -Critical Date Schedule
---------
constitutes the entire agreement between the parties hereto with respect to the
subject matter of this Lease and supersedes all prior agreements and
understandings between the parties related to the Premises, including all lease
proposals, letters of intent and similar documents. TENANT EXPRESSLY
ACKNOWLEDGES AND AGREES THAT LANDLORD HAS NOT MADE AND IS NOT MAKING, AND
TENANT, IN EXECUTING AND DELIVERING THIS LEASE, IS NOT RELYING UPON, ANY
WARRANTIES, REPRESENTATIONS, PROMISES OR STATEMENTS, EXCEPT TO THE EXTENT THAT
THE SAME ARE EXPRESSLY SET FORTH IN THIS LEASE. ALL UNDERSTANDINGS AND
AGREEMENTS HERETOFORE MADE BETWEEN THE PARTIES ARE MERGED IN THIS LEASE WHICH
ALONE FULLY AND COMPLETELY EXPRESSES THE AGREEMENT OF THE PARTIES, NEITHER PARTY
RELYING UPON ANY STATEMENT OR REPRESENTATION NOT EMBODIED IN THIS LEASE. THIS
LEASE MAY BE MODIFIED ONLY BY A WRITTEN AGREEMENT SIGNED BY LANDLORD AND TENANT.
LANDLORD AND TENANT EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED
WARRANTIES OF MERCHANTABILITY, HABITABILITY, SUITABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, ALL OF WHICH
ARE HEREBY WAIVED BY TENANT, AND THAT THERE ARE NO WARRANTIES WHICH EXTEND
BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.
36
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD:
EOP-BUCKHEAD, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its managing
general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: V.P. Leasing
--------------------------
TENANT:
VIEWLOCITY, INC., A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Sr. V.P. & CFO
----------------------------
37
EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
This Exhibit is attached to and made a part of the Lease dated
_____________, 1999, by and between EOP-BUCKHEAD, L.L.C. ("Landlord") and
VIEWLOCITY, INC. ("Tenant") for space in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
38
EXHIBIT A-1
OUTLINE AND LOCATION OF REFUSAL SPACE
This Exhibit is attached to and made a part of the Lease dated
_____________, 1999, by and between EOP-BUCKHEAD, L.L.C. ("Landlord") and
VIEWLOCITY, INC. ("Tenant") for space in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
39
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage associated therewith (if any), the
Property and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material of any nature shall be placed, emptied, or thrown in
those areas. At no time shall Tenant permit Tenant's employees to loiter
in common areas or elsewhere in or about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from misuse by Tenant or its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not in any case
be responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on or to
any windows, doors or other parts of the Building, except those of such
color, size, style and in such places as shall be first approved in
writing by Landlord. Except in connection with the hanging of lightweight
pictures, decorations and wall hangings, no nails, hooks or screws shall
be driven or inserted into any part of the Premises or Building except by
the Building maintenance personnel, nor shall any part of the Building be
defaced by Tenant.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board listing all Tenants, and no
other directory shall be permitted unless previously consented to by
Landlord in writing.
5. Tenant shall not place any additional lock or locks on any door in the
Premises or Building without Landlord's prior written consent. A
reasonable number of keys to the locks on the doors in the Premises shall
be furnished by Landlord to Tenant at the cost of Tenant, and Tenant
shall not have any duplicate keys made. All keys shall be returned to
Landlord at the expiration or earlier termination of this Lease.
6. All contractors, contractor's representatives, and installation
technicians performing work in the Building shall be subject to
Landlord's prior approval and shall be required to comply with Landlord's
standard rules, regulations, policies and procedures, as the same may be
revised from time to time. Tenant shall be solely responsible for
complying with all applicable laws, codes and ordinances pursuant to
which said work shall be performed.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which
require the use of elevators, stairways, lobby areas, or loading dock
areas, shall be restricted to hours designated by Landlord. Tenant must
seek Landlord's prior approval by providing in writing a detailed listing
of any such activity. If approved by Landlord, such activity shall be
under the supervision of Landlord and performed in the manner stated by
Landlord. Landlord may prohibit any article, equipment or any other item
from being brought into the Building. Tenant is to assume all risk for
damage to articles moved and injury to any persons resulting from such
activity. If any equipment, property, and/or personnel of Landlord or of
any other tenant is damaged or injured as a result of or in connection
with such activity, Tenant shall be solely liable for any and all damage
or loss resulting therefrom.
8. Landlord shall have the power to prescribe the weight and position of
safes and other heavy equipment or items, which in all cases shall not in
the opinion of Landlord exceed acceptable floor loading and weight
distribution requirements. All damage done to the Building by the
installation, maintenance, operation, existence or removal of any
property of Tenant shall be repaired at the expense of Tenant.
9. Corridor doors, when not in use, shall be kept closed.
40
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise unreasonably
interfere in any way with other tenants or persons having business with
them; (2) solicit business or distribute, or cause to be distributed,
in any portion of the Building any handbills, promotional materials or
other advertising; or (3) conduct or permit any other activities in the
Building that constitutes a nuisance.
11. No animals, except seeing eye dogs, shall be brought into or kept in, on
or about the Premises.
12. No inflammable, explosive or dangerous fluid or substance shall be used
or kept by Tenant in the Premises or Building. Except for those
substances as are typically found in similar premises used for general
business office purposes and are being used by Tenant in accordance with
all applicable laws, rules and regulations, Tenant shall not, without
Landlord's prior written consent, use, store, install, spill, remove,
release or dispose of within or about the Premises or any other portion
of the Property, any asbestos-containing materials or any solid, liquid
or gaseous material now or hereafter considered toxic or hazardous under
the provisions of 42 U.S.C. Section 9601 et seq. or any other applicable
environmental law which may now or hereafter be in effect. If Landlord
does give written consent to Tenant pursuant to the foregoing sentence,
Tenant shall comply with all applicable laws, rules and regulations
pertaining to and governing such use by Tenant, and shall remain liable
for all costs of cleanup or removal in connection therewith. =
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or future
value of the Premises or the Building; without limiting the foregoing,
Tenant shall not use or permit the Premises or any portion thereof to be
used for lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts affecting the Building or which would cause any work stoppage,
picketing, labor disruption or dispute, or any interference with the
business of Landlord or any other tenant or occupant of the Building or
with the rights and privileges of any person lawfully in the Building.
Tenant shall take any actions necessary to resolve any such work
stoppage, picketing, labor disruption, dispute or interference and shall
have pickets removed and, at the request of Landlord, immediately
terminate at any time any construction work being performed in the
Premises giving rise to such labor problems, until such time as Landlord
shall have given its written consent for such work to resume. Tenant
shall have no claim for damages of any nature against Landlord or any of
the Landlord Related Parties in connection therewith, nor shall the date
of the commencement of the Term be extended as a result thereof.
15. Tenant shall utilize the termite and pest extermination service
designated by Landlord to control termites and pests in the Premises.
Except as included in Basic Costs, Tenant shall bear the cost and expense
of such extermination services.
16. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, any electrical equipment which does not bear
the U/L (Underwriters Laboratories) seal of approval, or which would
overload the electrical system or any part thereof beyond its capacity
for proper, efficient and safe operation as determined by Landlord,
taking into consideration the overall electrical system and the present
and future requirements therefor in the Building. Tenant shall not
furnish any cooling or heating to the Premises, including, without
limitation, the use of any electronic or gas heating devices, without
Landlord's prior written consent. Tenant shall not use more than its
proportionate share of telephone lines available to service the Building.
17. Tenant shall not operate or permit to be operated on the Premises any
coin or token operated vending machine or similar device (including,
without limitation, telephones, lockers, toilets, scales, amusement
devices and machines for sale of beverages, foods, candy, cigarettes or
other goods), except for those vending machines or similar devices which
are for the sole and exclusive use of Tenant's employees, and then only
if such operation does not violate the lease of any other tenant of the
Building.
41
18. Bicycles and other vehicles are not permitted inside or on the walkways
outside the Building, except in those areas specifically designated by
Landlord for such purposes.
19. Landlord may from time to time adopt appropriate systems and procedures
for the security or safety of the Building, its occupants, entry and use,
or its contents. Tenant, Tenant's agents, employees, contractors, guests
and invitees shall comply with Landlord's reasonable requirements
relative thereto.
20. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion may
tend to impair the reputation of the Building or its desirability for
Landlord or other tenants. Upon written notice from Landlord, Tenant will
refrain from and/or discontinue such publicity immediately.
21. Tenant shall carry out Tenant's permitted repair, maintenance,
alterations, and improvements in the Premises only during times agreed to
in advance by Landlord and in a manner which will not unreasonably
interfere with the rights of other tenants in the Building.
22. Canvassing, soliciting, and peddling in or about the Building is
prohibited. Tenant shall cooperate and use its best efforts to prevent
the same.
23. At no time shall Tenant permit or shall Tenant's agents, employees,
contractors, guests, or invitees smoke in any common area of the
Building, unless such common area has been declared a designated smoking
area by Landlord, or to allow any smoke from the Premises to emanate into
the common areas or any other tenant's premises. Landlord shall have the
right at any time to designate the Building as a non-smoking building.
24. Tenant shall observe Landlord's rules with respect to maintaining
standard window coverings at all windows in the Premises so that the
Building presents a uniform exterior appearance. Tenant shall ensure that
to the extent reasonably practicable, window coverings are closed on all
windows in the Premises while they are exposed to the direct rays of the
sun.
25. All deliveries to or from the Premises shall be made only at such times,
in the areas and through the entrances and exits designated for such
purposes by Landlord. Tenant shall not permit the process of receiving
deliveries to or from the Premises outside of said areas or in a manner
which may unreasonably interfere with the use by any other tenant of its
premises or of any common areas, any pedestrian use of such area, or any
use which is inconsistent with good business practice.
26. The work of cleaning personnel shall not be hindered by Tenant after 5:30
P.M., and such cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles necessary to prevent
unreasonable hardship to Landlord regarding cleaning service.
42
EXHIBIT C
COMMENCEMENT LETTER
INTENTIONALLY OMITTED
43
EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of the Lease dated
____________, 1999, by and between EOP-BUCKHEAD, L.L.C. ("Landlord") and
VIEWLOCITY, INC. ("Tenant") for space in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the preparation of the Premises for Tenant's occupancy.
All improvements described in this Work Letter to be constructed in and
upon the Premises by Landlord are hereinafter referred to as the
"Landlord Work." It is agreed that construction of the Landlord Work will
be completed at Tenant's sole cost and expense, subject to the Allowance
(as defined below). Landlord shall also perform the Base Building Work in
the Premises (as described in EXHIBIT D-1) at Landlord's sole cost and
expense, subject to and in accordance with the terms of EXHIBIT D-1. Any
portion of the Base Building Work or other work described in EXHIBIT D-1
which is to be performed at Tenant's cost may be applied by Tenant
against the Allowance described herein. Landlord shall enter into a
direct contract for the Landlord Work with ▇▇▇▇▇▇ Contracting Inc. In
addition, Landlord shall have the right to select and/or approve of any
subcontractors used in connection with the Landlord Work. Landlord
acknowledges that Landlord and its affiliates have previously bid general
tenant improvement work performed in office buildings owned by Landlord
and/or its affiliates in the Atlanta area. Such bids were obtained from
at least five (5) different general contractors, and included unit
pricing, and a construction management fee of four and one-half percent
(4.5%) and an additional fee of two and 45/100 percent (2.45%).
2. Tenant shall be solely responsible for the timely preparation and
submission to Landlord of the final architectural, electrical and
mechanical construction drawings, plans and specifications (called
"Plans") necessary to construct the Landlord Work, which plans shall be
subject to approval by Landlord and Landlord's architect and engineers
and shall comply with their requirements to avoid aesthetic or other
conflicts with the design and function of the balance of the Building.
Tenant shall be responsible for all elements of the design of Tenant's
plans (including, without limitation, compliance with law, functionality
of design, the structural integrity of the design, the configuration of
the premises and the placement of Tenant's furniture, appliances and
equipment), and Landlord's approval of Tenant's plans shall in no event
relieve Tenant of the responsibility for such design. If requested by
Tenant, Landlord's architect will prepare the Plans necessary for such
construction at Tenant's cost. Whether or not the layout and Plans are
prepared with the help (in whole or in part) of Landlord's architect,
Tenant agrees to remain solely responsible for the timely preparation and
submission of the Plans and for all elements of the design of such Plans
and for all costs related thereto. Tenant has assured itself by direct
communication with the architect and engineers (Landlord's or its own, as
the case may be) that the final approved Plans (i.e. approved by Tenant
and Landlord and in condition required for submittal for a building
permit) can be delivered to Landlord on or before August 23, 1999 (the
"Plans Due Date"), provided that Tenant promptly furnishes complete
information concerning its requirements to said architect and engineers
as and when requested by them. Landlord agrees that Landlord shall review
and comment on, as necessary, each submittal of Plans within five (5)
Business Days after Landlord's receipt of each such Plans submittal, and
Tenant shall take this time period(s) into consideration when determining
whether it can deliver final approved Plans by the Plans Due Date. Tenant
covenants and agrees to cause said final, approved Plans to be delivered
to Landlord on or before said Plans Due Date and to devote such time as
may be necessary in consultation with said architect and engineers to
enable them to complete and submit the Plans within the required time
limit. Time is of the essence in respect of preparation and submission of
Plans by Tenant. In the event the Plans are not fully completed and
approved by the Plans Due Date, Tenant shall be responsible for one (1)
day of Tenant Delay (as defined in the Lease) for each day during the
period beginning on the day following the Plans Due Date and ending on
the date completed Plans are approved. (The word "architect" as used in
this EXHIBIT D shall include an interior designer or space planner.)
3. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, Landlord, prior to commencing any
construction of Landlord Work, shall submit to Tenant a written estimate
setting forth the anticipated cost of the Landlord
44
Work, including but not limited to labor and materials, contractor's fees
and permit fees. Within three (3) Business Days thereafter, Tenant shall
either notify Landlord in writing of its approval of the cost estimate,
or specify its objections thereto and any desired changes to the proposed
Landlord Work. In the event Tenant notifies Landlord of such objections
and desired changes, Tenant shall work with Landlord to reach a mutually
acceptable alternative cost estimate.
4 In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, if any (such amounts exceeding the Allowance
being herein referred to as the "Excess Costs"), Tenant shall pay to
Landlord such Excess Costs, plus any applicable state sales or use tax
thereon, upon demand, in accordance with the following: 50% of the Excess
Costs shall be paid prior to Landlord commencing any Landlord Work and
the balance of any Excess Costs shall be paid upon completion of the
Landlord Work. The statements of costs submitted to Landlord by
Landlord's contractors shall be conclusive for purposes of determining
the actual cost of the items described therein. The amounts payable by
Tenant hereunder constitute Rent payable pursuant to the Lease, and the
failure to timely pay same constitutes an event of default under the
Lease.
5. If Tenant shall request any change, addition or alteration in any of the
Plans after approval by Landlord, Landlord shall have such revisions to
the drawings prepared, and Tenant shall reimburse Landlord for the cost
thereof, plus any applicable state sales or use tax thereon, upon demand.
Promptly upon completion of the revisions, Landlord shall notify Tenant
in writing of the increased cost which will be chargeable to Tenant by
reason of such change, addition or deletion. Tenant, within three (3)
Business Days, shall notify Landlord in writing whether it desires to
proceed with such change, addition or deletion. In the absence of such
written authorization, Landlord shall have the option to continue work on
the Premises disregarding the requested change, addition or alteration,
or Landlord may elect to discontinue work on the Premises until it
receives notice of Tenant's decision, in which event Tenant shall be
responsible for any Tenant Delay in completion of the Premises resulting
therefrom. In the event such revisions result in a higher estimate of the
cost of construction and/or higher actual construction costs which exceed
the Allowance, such increased estimate or costs shall be deemed Excess
Costs pursuant to Paragraph 4 hereof and Tenant shall pay such Excess
Costs, plus any applicable state sales or use tax thereon, upon demand,
in accordance with the schedule described in Section 4 above, provided,
however, if Landlord has commenced the Landlord Work, then the initial
50% of the additional Excess Costs described in this Section 5 shall be
immediately payable.
6. Following approval of the Plans and the payment by Tenant of the required
portion of the Excess Costs, if any, Landlord shall obtain the permits
for the Landlord Work and cause the Landlord Work to be constructed
substantially in accordance with the approved Plans. Landlord shall
notify Tenant of substantial completion of the Landlord Work.
7. Landlord, provided Tenant is not in default, agrees to provide Tenant
with an allowance (the "Allowance") in an amount not to exceed $30.00 per
rentable square foot of the Premises to be applied toward the cost of the
Landlord Work in the Premises. If the Allowance shall not be sufficient
to complete the Landlord Work, Tenant shall pay the Excess Costs, plus
any applicable state sales or use tax thereon, as prescribed in paragraph
4 above. If the Allowance exceeds the cost of Landlord Work, any
remaining Allowance ("Unused Allowance") shall accrue to the sole benefit
of Landlord, it being agreed that, subject to the following, Tenant shall
not be entitled to any credit, offset, abatement or payment with respect
thereto; provided, however, upon completion of the Landlord Work and
payment of all costs related thereto, Landlord shall apply up to 50% of
the Unused Allowance (but in no event more than $1.50 per rentable square
foot contained in the initial Premises) against the second and subsequent
installments of Base Rental and Additional Base Rental due under this
Lease. Landlord shall be entitled to deduct from the Allowance a
construction management fee for Landlord's oversight of the Landlord Work
in an amount equal to four and one-half percent (4.5%) of the total cost
of the Landlord Work.
8. In addition to the above described Allowance, Landlord, provided Tenant
is not in default, agrees to be responsible for the cost to prepare the
initial preliminary space plan and one (1) revision thereto (up to a
maximum cost of $0.10 per rentable square foot in the initial Premises)
(the "Space Planning Allowance") and Tenant shall be responsible for all
45
other costs incurred in connection with the preparation of the
preliminary space plans. The Space Planning Allowance shall be paid to
Tenant concurrent with the first disbursement of the Allowance, or, at
Landlord's election, the Space Planning Allowance may be applied against
the Excess Costs to be paid by Tenant.
9. FINANCE OF EXCESS COSTS. If Tenant has used the entire Allowance as
provided herein, Tenant, provided it is not in default under this Lease,
shall have the right to borrow up to $5.00 per rentable square foot in
the initial Premises (the "Additional Allowance") from Landlord in order
to finance the Excess Costs during the initial Lease Term. Any Additional
Allowance borrowed by Tenant hereunder shall be repaid to Landlord as
Additional Base Rental in equal monthly installments throughout the
initial Lease Term at an interest rate equal to thirteen percent (13%)
per annum. If Tenant is in default under this Lease after the expiration
of applicable cure periods, the entire unpaid balance of the Additional
Allowance borrowed by Tenant shall become immediately due and payable
and, except to the extent required by applicable law, shall not be
subject to mitigation or reduction in connection with a reletting of the
Premises by Landlord.
10. This EXHIBIT D shall not be deemed applicable to any additional space
added to the original Premises at any time or from time to time, whether
by any options under the Lease or otherwise, or to any portion of the
original Premises or any additions to the Premises in the event of a
renewal or extension of the original Term of this Lease, whether by any
options under the Lease or otherwise, unless expressly so provided in the
Lease or any amendment or supplement to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of
the day and year first above written.
LANDLORD:
EOP-BUCKHEAD, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its managing
general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: V.P. Leasing
-------------------------
TENANT:
VIEWLOCITY, INC., A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Sr. V.P. & CFO
----------------------------
46
EXHIBIT D-1
BASE BUILDING WORK IN OR AFFECTING THE PREMISES
This Exhibit is attached to and made a part of the Lease dated ____________,
1999, by and between EOP-BUCKHEAD, L.L.C. ("Landlord") and VIEWLOCITY, INC.
("Tenant") for space in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇.
EXTERIOR WALLS:
Glazing: Floor to ceiling painted extruded aluminum
"window wall" system with an 8" interior
knee wall, allowing for flexible installation
of telephone, electrical and data cabling
along the perimeter wall. Energy efficient
1" tinted "Low-E" vision glass provides
Class "A" system performance and appearance.
Mini-Blinds: 1" horizontal mini-blinds on all exterior
windows, except at the lobby level.
MECHANICAL SYSTEM FOR BUILDING:
General Description: Direct Digital Control (DDC) Energy Management
System (EMS) controlled mechanical system.
Design Criteria: The HVAC equipment maintains
conditions to plus or minus 1%, based upon
Georgia Energy Code and the local conditions
specified in the 1997 edition of ASHRAE
Handbook of Fundamentals:
SUMMER: 75 Deg.F@ 50% max. relative
humidity interior, based upon outside conditions
of 94 Deg.F dry bulb and 74 Deg.F wet bulb.
WINTER: 72 Deg.F interior, based upon outside
conditions of 22 Deg.F dry bulb.
The foregoing criteria is based upon the
Building standard usage of electricity and
lighting and is based upon a maximum of 150
square feet occupied per person
System Equipment: A two-cell, induced draft cooling tower with a
motor in each cell. Water-cooled self-contained
air-conditioned VAV units are connected to medium
pressure duct. Primary conditioned air is
distributed to the VAV/PIU units through medium
pressure ductwork, perimeter low-pressure ductwork,
perimeter slots and perforated metal diffusers.
Exterior building zones are conditioned with PIU
units with electric heat. Interior zones are
conditioned with cooling only VAV units. The
core zones are conditioned with constant volume
PIU units with heat.
Tenant is responsible for installing interior HVAC
diffusers (but not exterior diffusers, which are
part of Base Building Work), and the balancing of
HVAC system serving the Premises once the tenant
improvements in the Premises are in place.
LIFE SAFETY SYSTEM FOR BUILDING:
General Description: Base Building fire alarm system complying with all
applicable NFPA requirements for shell building
including
47
life safety emergency lighting, exit signs,
annunciators, smoke detectors, emergency generator,
etc. on a full floor, non-partitioned basis.
All heated areas of the building will have a
"wet-pipe" sprinkler system configured on a full
floor, non-partitioned basis with up-right turned up.
BUILDING CORE:
Gypsum Board Walls: Typical core partitions: 3 5/8" metal studs at 24" o.c.
with 5/8" gypsum wallboard.
Wood Doors: Building standard doors are white birch 3'0", full height
premium pre-finished stain grade solid core wood doors.
Frames: Frames at service level will be hollow metals, all others
will be aluminum.
Hardware: Building standard hardware will be a satin finish chrome plated
lever design with mortise lock sets.
Plumbing: One domestic water heater with a re-circulating line provides
hot water on four to five floor intervals. Two wet columns are
available on each floor.
Power: Busway at 480/277 volts extending from the main switchboard to
the electrical rooms on each floor. Junction box grid system
on every floor for future tenant lighting receptacles.
Telephone: Telephone closets on each floor with grounded backboards.
Metering: Available based on tenant requirements.
Exit & Emergency Exits: Emergency fixtures shall be located on a full floor,
non-partitioned basis in stairwells, corridors, building exits,
lobbies, and toilet rooms
BASE BUILDING "ABOVE THE CEILING" DEFINITION:
Ceiling: Acoustical tile ceiling is suspended 9'0" above the finished floor.
Acoustical tile are 2'-0" x 2'-0" Eclipse by USG (or equal) with
▇▇▇▇ Fineline grid by USG (or equal). Tiles and light fixtures are
stacked on the floor for installation by the tenant as a part of
the tenant improvement installation. The grid is installed as a
part of base building.
Lighting: The tenant spaces will be provided with 2'x4', 3 lamp, 18 cell
recessed troffer, 3" deep parabolic lenses and electronic ballast
using T8 octron lamps. Base building fixtures are allotted at a
ratio of approximately one fixture per 100 usable square feet of the
premises and will be stacked on the floor and installed by the tenant
as part of the tenant improvement installation.
Fire Sprinkler: Office sprinkler heads are upright turned heads at the concrete
deck (1/225 usable square feet). The relocation of existing
heads or any additional heads necessitated by the tenant's plan
shall be provided by tenant as part of the tenant improvement
installation.
Electrical: A tenant grid system supporting 120 volt receptacle power and
277 volt lighting will be installed on each floor. This
48
system will consist of junction boxes located approximately 30'
centers connected via a disconnect 75 KVA transformer; 100 amp
lighting panel and a 225 amp double section receptacle panel.
Each junction box will contain branch circuiting capable of
supporting the following load densities: receptacle power of 5
▇▇▇▇▇ per usable square foot on a connected load basis and
lighting of 2 ▇▇▇▇▇ per usable square foot.
Window Sill: An 8 inch window sill condition exists below the exterior glass
to facilitate Tenant's installation of electrical, telephone
and computer cabling. The installation and finishing of the
sheetrock at said sill as well as the installation of said
electrical, telephone and computer cabling shall be provided by
tenant as part of the tenant improvement installation.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of
the day and year first above written.
LANDLORD:
EOP-BUCKHEAD, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its managing
general partner
By: _____________________________
Name: ___________________________
Title: __________________________
TENANT:
VIEWLOCITY, INC., A DELAWARE CORPORATION
By: _____________________________
Name: _____________________________
Title: _____________________________
49
EXHIBIT E
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease dated
____________, 1999, by and between EOP-BUCKHEAD, L.L.C. ("Landlord") and
VIEWLOCITY, INC. ("Tenant") for space in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
I. PARKING.
A. During the initial Lease Term, Tenant shall have the right to
lease up to 77 unreserved parking spaces and 6 reserved spaces
(collectively, the "Spaces") in, or on the roof of, the Building
garage ("Garage") for the use of Tenant and its employees. No
deductions or allowances shall be made for days when Tenant or any
of its employees does not utilize the parking facilities or for
Tenant utilizing less than all of the Spaces. Tenant shall not
have the right to lease or otherwise use more than the number of
reserved and unreserved Spaces set forth above. In order to lease
any of the parking Spaces available to Tenant hereunder, Tenant
must provide Landlord with at least thirty (30) days prior written
notice that it desires to lease the parking Spaces in accordance
with this Section. Such notice shall specify the number of Spaces
which Tenant elects to lease hereunder (up to an aggregate of 77
unreserved parking spaces and 6 reserved spaces). If Tenant's
notice specifies less than the maximum number of Spaces available
to Tenant hereunder, Tenant may elect to lease additional Spaces
(up to a maximum aggregate of 77 unreserved parking spaces and 6
reserved spaces) by providing subsequent thirty (30) day notices
to Landlord.
B. During the initial Lease Term, Tenant shall pay Landlord, as
Additional Base Rental in accordance with Article IV of the Lease,
the sum of $45.00 per month, plus applicable tax thereon, if any,
for each unreserved Space leased by Tenant hereunder, and the sum
of $75.00 per month, plus applicable tax thereon, if any, for each
reserved Space leased by Tenant hereunder, as such rates may be
adjusted from time-to-time to reflect the then current rate for
parking in the Garage.
C. Except for particular spaces and areas designated by Landlord for
reserved parking, all parking in the Garage and surface parking
areas serving the Building shall be on an unreserved, first-come,
first-served basis.
D. Landlord shall not be responsible for money, jewelry, automobiles
or other personal property lost in or stolen from the Garage or
the surface parking areas regardless of whether such loss or theft
occurs when the Garage or other areas therein are locked or
otherwise secured. Except as caused by the negligence or willful
misconduct of Landlord and without limiting the terms of the
preceding sentence, Landlord shall not be liable for any loss,
injury or damage to persons using the Garage or the surface
parking areas or automobiles or other property therein, it being
agreed that, to the fullest extent permitted by law, the use of
the Spaces shall be at the sole risk of Tenant and its employees.
E. Landlord shall have the right from time to time to designate the
location of the Spaces and to promulgate reasonable rules and
regulations regarding the Garage, the surface parking areas, if
any, the Spaces and the use thereof, including, but not limited
to, rules and regulations controlling the flow of traffic to and
from various parking areas, the angle and direction of parking and
the like. Tenant shall comply with and cause its employees to
comply with all such rules and regulations as well as all
reasonable additions and amendments thereto. Notwithstanding the
foregoing, it is agreed that Tenant's reserved Spaces shall not be
located on the roof of the Garage and shall be located within
reasonable proximity to the Building entrance(s).
F. Tenant shall not store or permit its employees to store any
automobiles in the Garage or on the surface parking areas without
the prior written consent of Landlord. Except for emergency
repairs, Tenant and its employees shall not perform any work on
any automobiles while located in the Garage or on the Property. If
it is necessary for Tenant or its employees to leave an automobile
in
50
the Garage or on the surface parking areas overnight, Tenant shall
provide Landlord with prior notice thereof designating the license
plate number and model of such automobile.
G. Landlord shall have the right to temporarily close the Garage or
certain areas therein in order to perform necessary repairs,
maintenance and improvements to the Garage or the surface parking
areas, if any.
H. Tenant shall not assign or sublease any of the Spaces without the
consent of Landlord, which consent shall not be unreasonably
withheld or delayed provided such assignment or subletting of
Spaces is to a permitted assignee of Tenant's rights under the
Lease or a permitted subtenant of all or a portion of the Premises
and does not exceed 3 Spaces per 1,000 rentable square feet in
such portion of the Premises. Subject to the foregoing, Landlord
shall have the right to terminate this Parking Agreement with
respect to any Spaces that Tenant desires to sublet or assign.
I. Landlord may elect to provide parking cards or keys to control
access to the Garage or surface parking areas, if any. In such
event, Landlord shall provide Tenant with one card or key for each
Space that Tenant is leasing hereunder, provided that Landlord
shall have the right to require Tenant or its employees to place a
deposit on such access cards or keys and to pay a fee for any lost
or damaged cards or keys.
J. Landlord hereby reserves the right to enter into a management
agreement or lease with an entity for the Garage ("Garage
Operator"). In such event, Tenant, upon request of Landlord, shall
enter into a parking agreement with the Garage Operator and pay
the Garage Operator the monthly charge established hereunder, and
Landlord shall have no liability for claims arising through acts
or omissions of the Garage Operator unless caused by Landlord's
negligence or willful misconduct. It is understood and agreed that
the identity of the Garage Operator may change from time to time
during the Lease Term. In connection therewith, any parking lease
or agreement entered into between Tenant and a Garage Operator
shall be freely assignable by such Garage Operator or any
successors thereto.
K. Landlord agrees that, in entering into leases for the Building
from and after the date of this Lease, Landlord shall not
contractually agree to make available more than 3.5 parking spaces
in the Garage per 1,000 rentable square feet in any tenant's
premises, determined on an average basis among all leases for the
Building, unless Landlord retains the right to revoke or reclaim
any parking spaces which exceed such limit.
II. INTENTIONALLY OMITTED.
III. RENEWAL OPTION.
A. Tenant shall have the right to extend the Lease Term (the "Renewal
Option") for one additional period of five (5) years commencing on
the day following the Termination Date of the initial Lease Term
and ending on the fifth (5th) anniversary of the Termination Date
(the "Renewal Term"), if:
1. Landlord receives notice of exercise ("Initial Renewal
Notice") not less than nine (9) full calendar months prior
to the expiration of the initial Lease Term and not more
than fifteen (15) full calendar months prior to the
expiration of the initial Lease Term; and
2. Tenant is not in default under the Lease beyond any
applicable cure periods at the time that Tenant delivers
its Initial Renewal Notice or at the time Tenant delivers
its Binding Notice; and
3. No part of the Premises is sublet, other than to a
Permitted Transferee (as defined in Section XIII.E of the
Lease), at the time that Tenant delivers its Initial
Renewal Notice or at the time Tenant delivers its Binding
Notice; and
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4. The Lease has not been assigned, other than to a Permitted
Transferee (as defined in Section XIII.E of the Lease),
prior to the date that Tenant delivers its Initial Renewal
Notice or prior to the date Tenant delivers its Binding
Notice.
B. The initial Base Rental rate per rentable square foot for the
Premises during the Renewal Term shall equal the Prevailing Market
(hereinafter defined) rate per rentable square foot for the
Premises.
C. Tenant shall pay Additional Base Rental (i.e. Basic Costs) for the
Premises during the Renewal Term in accordance with Article IV of
the Lease and the Base Year(s) shall be adjusted, if at all, as
part of the determination of the Prevailing Market rate.
D. Within thirty (30) days after receipt of Tenant's Initial Renewal
Notice, Landlord shall advise Tenant of the applicable Base Rental
rate for the Premises for the Renewal Term. Tenant, within thirty
(30) days after the date on which Landlord advises Tenant of the
applicable Base Rental rate for the Renewal Term, shall either (i)
give Landlord final binding written notice ("Binding Notice") of
Tenant's exercise of its option, or (ii) if Tenant disagrees with
Landlord's determination, provide Landlord with written notice of
rejection (the "Rejection Notice"). If Tenant fails to provide
Landlord with either a Binding Notice or Rejection Notice within
such fifteen (15) day period, Tenant's Renewal Option shall be
null and void and of no further force and effect. If Tenant
provides Landlord with a Binding Notice, Landlord and Tenant shall
enter into the Renewal Amendment upon the terms and conditions set
forth herein. If Tenant provides Landlord with a Rejection Notice,
Landlord and Tenant shall work together in good faith to agree
upon the Prevailing Market rate for the Premises during the
Renewal Term. Upon agreement Tenant shall provide Landlord with
Binding Notice and Landlord and Tenant shall enter into the
Renewal Amendment in accordance with the terms and conditions
hereof. Notwithstanding the foregoing, if Landlord and Tenant fail
to agree upon the Prevailing Market rate within thirty (30) days
after the date Tenant provides Landlord with the Rejection Notice,
Tenant, by written notice to Landlord (the "Arbitration Notice")
within five (5) days after the expiration of such thirty (30) day
period, shall have the right to have the Prevailing Market rate
determined in accordance with the arbitration procedures described
in Section E below. If Landlord and Tenant fail to agree upon the
Prevailing Market rate within the thirty (30) day period described
and Tenant fails to exercise its right to arbitrate, Tenant's
Renewal Option shall be deemed to be null and void and of no
further force and effect.
E. ARBITRATION PROCEDURE.
1. If Tenant provides Landlord with an Arbitration Notice,
Landlord and Tenant, within five (5) days after the date of
the Arbitration Notice, shall each simultaneously submit to
the other, in a sealed envelope, its good faith estimate of
the Prevailing Market rate for the Premises during the
Renewal Term (collectively referred to as the "Estimates").
If the Estimates are not the same, then, within seven (7)
days after the exchange of Estimates, Landlord and Tenant
shall each select an appraiser to determine which of the
two Estimates most closely reflects the Prevailing Market
rate for the Premises during the Renewal Term.
Each appraiser so selected shall be certified as an MAI
appraiser or as an ASA appraiser and shall have had at
least five (5) years experience within the previous ten
(10) years as a real estate appraiser working in the
Buckhead area of Atlanta, Georgia, with working knowledge
of current rental rates and practices. For purposes of the
Lease, an "MAI" appraiser means an individual who holds an
MAI designation conferred by, and is an independent member
of, the American Institute of Real Estate Appraisers (or
its successor organization, or in the event there is no
successor organization, the organization and designation
most similar), and an "ASA" appraiser means an individual
who holds the Senior Member designation conferred by, and
is an independent member of, the American Society of
Appraisers (or its successor organization, or, in the
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event there is no successor organization, the organization
and designation most similar).
2. Upon selection, Landlord's and Tenant's appraisers shall
work together in good faith to agree upon which of the two
Estimates most closely reflects the Prevailing Market rate
for the Premises. The Estimate chosen by such appraisers
shall be binding on both Landlord and Tenant as the Base
Rent rate for the Premises, subject to the terms of Section
III.E.4 below. If either Landlord or Tenant fails to
appoint an appraiser within the seven (7) day period
referred to above, the appraiser appointed by the other
party shall be the sole appraiser for the purposes hereof.
If the two appraisers cannot agree upon which of the two
Estimates most closely reflects the Prevailing Market
within twenty (20) days after their appointment, then,
within ten (10) days after the expiration of such twenty
(20) day period, the two (2) appraisers shall select a
third appraiser meeting the aforementioned criteria. Once
the third appraiser (i.e. arbitrator) has been selected as
provided for above, then, as soon thereafter as practicable
but in any case within fourteen (14) days, the arbitrator
shall make his determination of which of the two Estimates
most closely reflects the Prevailing Market rate and such
Estimate shall be binding on both Landlord and Tenant as
the Base Rent rate for the Premises. If the arbitrator
believes that expert advice would materially assist him, he
may retain one or more qualified persons to provide such
expert advice. The parties shall share equally in the costs
of the arbitrator and of any experts retained by the
arbitrator. Any fees of any appraiser, counsel or experts
engaged directly by Landlord or Tenant, however, shall be
borne by the party retaining such appraiser, counsel or
expert.
3. If the Prevailing Market rate has not been determined by
the commencement date of the Renewal Term for the Premises,
Tenant shall pay Base Rent at the Minimum Renewal Term Base
Rental Rate until such time as the Prevailing Market rate
has been determined. Upon such determination, the Base Rent
for the Premises shall be retroactively adjusted to the
commencement of the Renewal Term for the Premises. If such
adjustment results in an underpayment of Base Rent by
Tenant, Tenant shall pay Landlord the amount of such
underpayment within thirty (30) days after the
determination thereof. If such adjustment results in an
overpayment of Base Rent by Tenant, Landlord shall credit
such overpayment against the next installment of Base Rent
due under the Lease and, to the extent necessary, any
subsequent installments, until the entire amount of such
overpayment has been credited against Base Rent.
4. Notwithstanding anything to the contrary contained herein,
the parties hereby agree that Landlord shall not be
obligated to renew this Lease if the Prevailing Market rate
for the Premises during the Renewal Term is less than the
Base Rental rate, per rentable square foot per annum,
applicable during the last year of the initial Lease Term,
plus three (3%) of such rate (the "Minimum Renewal Term
Base Rental Rate"), regardless of any determination of
Prevailing Market rate made by the appraisers or
arbitrator, as described above.
F. If Tenant is entitled to and properly exercises its Renewal
Option, Landlord shall prepare an amendment (the "Renewal
Amendment") to reflect changes in the Base Rental, Lease Term,
Termination Date and other appropriate terms. The Renewal
Amendment shall be sent to Tenant within a reasonable time after
receipt of the Binding Notice and Tenant shall execute and return
the Renewal Amendment to Landlord within fifteen (15) days after
Tenant's receipt of same, but an otherwise valid exercise of the
Renewal Option shall, at Landlord's option, be fully effective
whether or not the Renewal Amendment is executed.
G. For purposes hereof, "Prevailing Market" shall mean the arms
length fair market annual rental rate per rentable square foot
under renewal leases and amendments entered into on or about the
date on which the Prevailing Market is being determined hereunder
for space comparable to the Premises in the Building and office
buildings comparable to the Building in the Buckhead area of
53
Atlanta, Georgia. The determination of Prevailing Market shall
take into account any material economic differences between the
terms of this Lease and any comparison lease, such as rent
abatements, construction costs and other concessions and the
manner, if any, in which the landlord under any such lease is
reimbursed for operating expenses and taxes. The determination of
Prevailing Market shall also take into consideration any
reasonably anticipated changes in the Prevailing Market rate from
the time such Prevailing Market rate is being determined and the
time such Prevailing Market rate will become effective under this
Lease.
IV. RIGHT OF FIRST REFUSAL.
▇. ▇▇▇▇▇ OF OPTION. Tenant shall have the right of first refusal with
respect to the approximately 8,739 rentable square feet of space
on the sixteenth (16th) floor of the Building shown on the
demising plan attached hereto as EXHIBIT A-1 (the "Refusal
Space"), which right of first refusal shall be exercised as
follows: when Landlord has a prospective tenant ("Prospect")
interested in leasing the Refusal Space, Landlord shall advise
Tenant (the "Advice") of the terms under which Landlord is
prepared to lease the Refusal Space to such Prospect, as modified
by Landlord for Tenant to reflect a lease term for the Refusal
Space which terminates coterminous with the initial Premises (the
"Advice"), and Tenant may lease the Refusal Space, under such
terms in the Advice, by providing Landlord with written notice of
exercise ("Notice of Exercise") within five (5) days after the
date of the Advice, except that Tenant shall have no such Right of
First Refusal and Landlord need not provide Tenant with an Advice
if:
1. Tenant is in default under the Lease beyond any applicable
cure period at the time Landlord would otherwise deliver
the Advice; or
2. more than twenty percent (20%) of the Premises is sublet,
other than to a Permitted Transferee (as defined in Section
XIII.E of the Lease), at the time Landlord would otherwise
deliver the Advice; or
3. the Lease has been assigned, other than to a Permitted
Transferee (as defined in Section XIII.E of the Lease),
prior to the date Landlord would otherwise deliver the
Advice; or
4. the Refusal Space is not intended for the exclusive use of
Tenant during the Lease Term; or
5. the Commencement Date has occurred and the Tenant is not
occupying the Premises on the date Landlord would otherwise
deliver the Advice.
B. TERMS FOR REFUSAL SPACE.
1. The term for the Refusal Space shall commence upon the
commencement date stated in the Advice and thereupon such
Refusal Space shall be considered a part of the Premises,
provided that all of the terms stated in the Advice
(including, without limitation, the expiration date set
forth in the Advice) shall govern Tenant's leasing of the
Refusal Space and only to the extent that they do not
conflict with the Advice, the terms and conditions of this
Lease shall apply to the Refusal Space.
2. The Refusal Space (including improvements and personalty,
if any) shall be accepted by Tenant in its condition and
as-built configuration existing on the earlier of the date
Tenant takes possession of the Refusal Space or the date
the term for such Refusal Space commences, unless the
Advice specifies work to be performed by Landlord in the
Refusal Space, in which case Landlord shall perform such
work in the Refusal Space.
C. TERMINATION OF RIGHT OF FIRST REFUSAL. The rights of Tenant
hereunder with respect to the Refusal Space shall terminate on the
earlier to occur of (i) September 30, 2005; (ii) Tenant's failure
to exercise its Right of First Refusal within the five (5) day
period provided in paragraph A above; and (iii) the date Landlord
would have provided Tenant an Advice if Tenant had not been in
54
violation of one or more of the conditions set forth in Paragraph
A above. Notwithstanding item (ii) above, if (i) Tenant was
entitled to exercise its Right of First Refusal, but failed to
provide Landlord with a Notice of Exercise within the five (5) day
period provided in paragraph A above, and (ii) Landlord does not
enter into a lease for the Refusal Space within a period of six
(6) months following the date of the Advice, Tenant shall once
again have a Right of First Refusal with respect to the Refusal
Space.
D. REFUSAL SPACE AMENDMENT
1. If Tenant exercises its Right of First Refusal, Landlord
shall prepare an amendment (the "Refusal Space Amendment")
adding the Refusal Space to the Premises on the terms set
forth in the Advice and reflecting the changes in the Base
Rental, Rentable Area of the Premises, Tenant's Pro Rata
Share and other appropriate terms.
2. A copy of the Refusal Space Amendment shall be (i) sent to
Tenant within a reasonable time after Landlord's receipt of
the Notice of Exercise, and (ii) executed by Tenant and
returned to Landlord within ten (10) Business Days
thereafter, but an otherwise valid exercise of the Right of
First Refusal shall, at Landlord's option, be fully
effective whether or not the Refusal Space Amendment is
executed.
E. Notwithstanding anything herein to the contrary, Tenant's Right of
First Refusal is subject and subordinate to (i) the renewal or
extension rights of any tenant leasing all or any portion of the
Refusal Space, and (ii) the expansion rights (whether such rights
are designated as a right or first offer, right of first refusal,
expansion option or otherwise) of HTG Corporation (or any
successor thereof) existing on the date hereof.
V. SATELLITE DISH.
A. During the initial Lease Term, Tenant shall have the right, by
providing written notice to Landlord (the "Antenna Notice"), to
lease space on the roof of the Building or other appropriate space
on or about the Building, as reasonably determined by Landlord,
for the purpose of installing (in accordance with Section X.B of
the Lease), operating and maintaining an antenna, satellite dish
or other communication device approved by Landlord (the
"Dish/Antenna"). If Tenant does not provide Landlord with the
Antenna Notice and install the permitted Dish/Antenna equipment in
the Roof Space on or before July 1, 2000 (the "Required Antenna
Notice Date"), then Tenant's rights under this Section V shall be
subject to the availability of appropriate space on the roof of
the Building or on or about the Building, as reasonably determined
by Landlord. If Tenant does not provide Landlord with the Antenna
Notice and install the permitted Dish/Antenna equipment in the
Roof Space on or before July 1, 2001, then Tenant's rights under
this Section V shall be null and void, unless otherwise agreed by
Landlord in writing. In consideration for Tenant's right to
install, operate and maintain the Dish/Antenna as described
herein, Tenant shall pay Landlord monthly payments of $300.00 per
month, subject to 5% escalations each annual anniversary of the
Required Antenna Notice Date (the "Dish/Antenna Payments"). The
Dish/Antenna Payments shall constitute Additional Base Rental
under the terms of the Lease and Tenant shall be required to make
these payments in strict compliance with the terms of Section IV
of the Lease. The exact location and size of the space on the roof
or on or about the Building to be utilized by Tenant shall be
designated by Landlord (the "Roof Space"). Landlord reserves the
right to relocate the Roof Space as reasonably necessary during
the Lease Term. Landlord's designation shall take into account
Tenant's use of the Dish/Antenna. Notwithstanding the foregoing,
Tenant's right to install the Dish/Antenna shall be subject to the
approval rights of Landlord and Landlord's architect and/or
engineer with respect to the plans and specifications of the
Dish/Antenna, the manner in which the Dish/Antenna is attached to
the roof of the Building and the manner in which any cables are
run to and from the Dish/Antenna. The precise specifications and a
general description of the Dish/Antenna along with all documents
Landlord reasonably requires to review the installation of the
Dish/Antenna (the "Plans and Specifications") shall be
55
submitted to Landlord for Landlord's written approval no later
than twenty (20) days before Tenant commences to install the
Dish/Antenna. Tenant shall be solely responsible for obtaining all
necessary governmental and regulatory approvals and for the cost
of installing, operating, maintaining and removing the
Dish/Antenna. Tenant shall notify Landlord upon completion of the
installation of the Dish/Antenna. If Landlord determines that the
Dish/Antenna equipment does not comply with the approved Plans and
Specifications, that the Building has been damaged during
installation of the Dish/Antenna or that the installation was
defective, Landlord shall notify Tenant of any noncompliance or
detected problems and Tenant promptly shall cure the defects. If
the Tenant fails to promptly cure the defects, Tenant shall pay to
Landlord upon demand the cost, as reasonably determined by
Landlord, of correcting any defects and repairing any damage to
the Building caused by such installation. If at any time Landlord,
in its sole discretion, deems it necessary, Tenant shall provide
and install, at Tenant's sole cost and expense, appropriate
aesthetic screening, reasonably satisfactory to Landlord, for the
Dish/Antenna (the "Aesthetic Screening").
B. Landlord agrees that Tenant, upon reasonable prior written notice
to Landlord, shall have access to the roof of the Building and the
Roof Space for the purpose of installing, maintaining, repairing
and removing the Dish/Antenna, the appurtenances and the Aesthetic
Screening, if any, all of which shall be performed by Tenant or
Tenant's authorized representative or contractors, which shall be
approved by Landlord, at Tenant's sole cost and risk. It is
agreed, however, that only authorized engineers, employees or
properly authorized contractors of Tenant, FCC inspectors, or
persons under their direct supervision will be permitted to have
access to the roof of the Building and the Roof Space. Tenant
further agrees to exercise firm control over the people requiring
access to the roof of the Building and the Roof Space in order to
keep to a minimum the number of people having access to the roof
of the Building and the Roof Space and the frequency of their
visits.
C. It is further understood and agreed that the installation,
maintenance, operation and removal of the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, is not
permitted to damage the Building or the roof thereof, or interfere
with the use of the Building and roof by Landlord. Tenant agrees
to be responsible for any damage caused to the roof or any other
part of the Building, which may be caused by Tenant or any of its
agents or representatives.
D. Tenant agrees to install only equipment of types and frequencies
which will not cause unreasonable interference to Landlord or
existing tenants of the Building. In the event Tenant's equipment
causes such interference, Tenant will change the frequency on
which it transmits and/or receives and take any other steps
necessary to eliminate the interference. If said interference
cannot be eliminated within a reasonable period of time, in the
judgment of Landlord, then Tenant agrees to remove the
Dish/Antenna from the Roof Space.
E. Tenant shall, at its sole cost and expense, and at its sole risk,
install, operate and maintain the Dish/Antenna in a good and
workmanlike manner, and in compliance with all Building, electric,
communication, and safety codes, ordinances, standards,
regulations and requirements, now in effect or hereafter
promulgated, of the Federal Government, including, without
limitation, the Federal Communications Commission (the "FCC"), the
Federal Aviation Administration ("FAA") or any successor agency of
either the FCC or FAA having jurisdiction over radio or
telecommunications, and of the state, city and county in which the
Building is located. Under this Lease, the Landlord and its agents
assume no responsibility for the licensing, operation and/or
maintenance of Tenant's equipment. Tenant has the responsibility
of carrying out the terms of its FCC license in all respects. The
Dish/Antenna shall be connected to Landlord's power supply in
strict compliance with all applicable Building, electrical, fire
and safety codes. Neither Landlord nor its agents shall be liable
to Tenant for any stoppages or shortages of electrical power
furnished to the Dish/Antenna or the Roof Space because of any
act, omission or requirement of the public utility serving the
Building, or the act or omission of any other tenant, invitee or
licensee or their respective agents, employees or contractors, or
for any other cause beyond the reasonable control of Landlord, and
Tenant shall not be entitled to
56
any rental abatement for any such stoppage or shortage of
electrical power. Neither Landlord nor its agents shall have any
responsibility or liability for the conduct or safety of any of
Tenant's representatives, repair, maintenance and engineering
personnel while in or on any part of the Building or the Roof
Space.
F. The Dish/Antenna, the appurtenances and the Aesthetic Screening,
if any, shall remain the personal property of Tenant, and shall be
removed by Tenant at its own expense at the expiration or earlier
termination of this Lease or Tenant's right to possession
hereunder. Tenant shall repair any damage caused by such removal,
including the patching of any holes to match, as closely as
possible, the color surrounding the area where the equipment and
appurtenances were attached. Tenant agrees to maintain all of the
Tenant's equipment placed on or about the roof or in any other
part of the Building in proper operating condition and maintain
same in satisfactory condition as to appearance and safety in
Landlord's sole discretion. Such maintenance and operation shall
be performed in a manner to avoid any interference with any other
tenants or Landlord. Tenant agrees that at all times during the
Lease Term, it will keep the roof of the Building and the Roof
Space free of all trash or waste materials produced by Tenant or
Tenant's agents, employees or contractors.
G. In light of the specialized nature of the Dish/Antenna, Tenant
shall be permitted to utilize the services of its choice for
installation, operation, removal and repair of the Dish/Antenna,
the appurtenances and the Aesthetic Screening, if any, subject to
the reasonable approval of Landlord. Notwithstanding the
foregoing, Tenant must provide Landlord with prior written notice
of any such installation, removal or repair and coordinate such
work with Landlord in order to avoid voiding or otherwise
adversely affecting any warranties granted to Landlord with
respect to the roof. If necessary, Tenant, at its sole cost and
expense, shall retain any contractor having a then existing
warranty in effect on the roof to perform such work (to the extent
that it involves the roof), or, at Tenant's option, to perform
such work in conjunction with Tenant's contractor. In the event
the Landlord contemplates roof repairs that could affect Tenant's
Dish/Antenna, or which may result in an interruption of the
Tenant's telecommunication service, Landlord shall formally notify
Tenant at least thirty (30) days in advance (except in cases of an
emergency) prior to the commencement of such contemplated work in
order to allow Tenant to make other arrangements for such service.
H. Tenant shall not allow any provider of telecommunication, video,
data or related services ("Communication Services") to locate any
equipment on the roof of the Building or in the Roof Space for any
purpose whatsoever, nor may Tenant use the Roof Space and/or
Dish/Antenna to provide Communication Services to an unaffiliated
tenant, occupant or licensee of another building, or to facilitate
the provision of Communication Services on behalf of another
Communication Services provider to an unaffiliated tenant,
occupant or licensee of the Building or any other building.
I. Tenant acknowledges that Landlord may at some time establish a
standard license agreement (the "License Agreement") with respect
to the use of roof space by tenants of the Building. Tenant, upon
request of Landlord, shall enter into such License Agreement with
Landlord provided that such agreement does not materially alter
the rights of Tenant hereunder with respect to the Roof Space.
J. Tenant specifically acknowledges and agrees that the terms and
conditions of Article XV of the Lease (Indemnity and Waiver of
Claims) shall apply with full force and effect to the Roof Space
and any other portions of the roof accessed or utilized by Tenant,
its representatives, agents, employees or contractors.
K. If Tenant defaults under any of the terms and conditions of this
Section or the Lease, and Tenant fails to cure said default within
the time allowed by Article XXII of the Lease, Landlord shall be
permitted to exercise all remedies provided under the terms of the
Lease, including removing the Dish/Antenna, the appurtenances and
the Aesthetic Screening, if any, and restoring the Building and
the Roof Space to the condition that existed prior to the
installation of the Dish/Antenna, the appurtenances and the
Aesthetic Screening, if any. If Landlord removes the Dish/Antenna,
the appurtenances and the Aesthetic Screening, if any, as a result
57
of an uncured default, Tenant shall be liable for all costs and
expenses Landlord incurs in removing the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, and repairing
any damage to the Building, the roof of the Building and the Roof
Space caused by the installation, operation or maintenance of the
Dish/Antenna, the appurtenances, and the Aesthetic Screening, if
any.
VI. STANDARD OF REASONABLENESS. Except as specifically provided otherwise in
this Lease, and except with regard to requests for consent or approval
that require Landlord to make a determination of the aesthetics of
certain signage, alterations or other things that would be visible from
outside the Premises or Building or to assume certain risks, including,
without limitation, the risk that a certain alteration, addition and/or
improvement could adversely affect the mechanical systems or structure of
the Building or require excess removal costs, Landlord and Tenant agree
to act reasonably in granting approval or disapproval of any requests by
the other for consent or approval.
VII. ENVIRONMENTAL MATTERS.
A. Landlord represents, to the best of its knowledge, that the
Building and Premises are free of Hazardous Materials (as defined
below) in amounts, and conditions which pose danger to human
beings or are in violation of applicable environmental laws.
B. Tenant shall not use, generate, manufacture, store or dispose of,
on or about the Premises or Building, or transport to or from the
Premises or Building, any flammable explosives, radioactive
materials, hazardous wastes, toxic substances, or any related
materials or substances, including, without limitation, any
substance defined as or included in the definition of "hazardous
substances" under any applicable federal, state or local law,
regulation or ordinance (collectively, "Hazardous Materials").
C. Notwithstanding the provisions of this Section VII, Tenant and
Landlord shall have the right to use, generate and store on the
Premises and the Building, and transport to and from the Premises
and the Building, those Hazardous Materials which are generally
used in the ordinary course in first class office buildings;
provided, however, that Tenant's and Landlord's use, generation,
storage and transport thereof is in compliance with all applicable
federal, state and local laws, regulations and ordinances.
D. Promptly, upon either Landlord's or Tenant's obtaining actual
knowledge thereof, such party shall immediately notify the other
party in writing of (i) any and all enforcement, cleanup, removal
or other governmental or regulatory actions instituted, completed
or threatened with respect to Hazardous Materials in or at the
Building pursuant to any applicable federal, state or local law,
ordinance or regulation, and (ii) all claims made or threatened by
any third party against Landlord, Tenant, or the Premises relating
to any damage, loss or injury, whether to person or property,
resulting from the Hazardous Materials.
VIII. TELECOMMUNICATIONS PROVIDER.
A. Tenant, at its sole cost and expense, shall have the right to
contract with an alternative telecommunications provider
("Alternative Provider") for the provision to the Premises of
local telephone service or other telecommunication service and
permit such Alternative Provider to install telephone, data or
other information cabling or other telecommunications equipment in
the Premises for such purpose. Tenant shall be permitted to use
its pro rata share of the Building's riser system for the purpose
of installing appropriate cabling for such use. The point of entry
(and method and manner of same) into the Building by such
Alternative Provider shall be subject to Landlord's reasonable
approval.
B. The rights of Tenant provided herein are subject to (i) Landlord's
approval of plans and specifications regarding any
telecommunications equipment or cabling to be installed in the
Building; (ii) Landlord's approval of the manner and method of any
such installation; (iii) Landlord's approval of the Alternative
Provider; and (iv) the Alternative Provider's execution and
delivery of Landlord's standard telecommunications/communications
license agreement. The approval of
58
Landlord required in connection with the foregoing matters shall
not be unreasonably withheld. Landlord shall not be entitled to
receive any compensation from Tenant in connection with allowing
the access described herein, provided such access is used
exclusively to provide service to Tenant in the Building.
C. Tenant and/or its Alternative Provider shall be permitted access
to the Building's riser system for the initial installation of the
telecommunications cabling and other equipment and, in order to
install, maintain, operate and remove the telecommunications
cabling or other equipment, Tenant and the Alternative Provider
shall be permitted access to the telecommunications closet(s) on
the floors on which the Premises are located. Upon expiration or
earlier termination of this Lease or Tenant's right to possession
of the Premises, Tenant, at Tenant's cost, if requested by
Landlord, shall remove all cabling and conduit from the riser
system or other portions of the Building outside of the Premises
and other equipment installed by or on behalf of Tenant in
connection with the service to be provided in accordance with this
Section XIII.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of
the day and year first above written.
LANDLORD:
EOP-BUCKHEAD, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its managing
general partner
By: _____________________________
Name: ___________________________
Title: __________________________
TENANT:
VIEWLOCITY, INC., A DELAWARE CORPORATION
By: _____________________________
Name: _____________________________
Title: _____________________________
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EXHIBIT F
FORM OF LETTER OF CREDIT
This Exhibit is attached to and made a part of the Lease dated
_____________, 1999, by and between EOP-BUCKHEAD, L.L.C. ("Landlord") and
VIEWLOCITY, INC. ("Tenant") for space in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
-------------------------------
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. ______________________
Issuance Date:_____________
Expiration Date:____________
Applicant:__________________
BENEFICIARY
EOP-Buckhead, L.L.C.
c/o Equity Office Properties Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Building Manager
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your
favor for the account of the above referenced Applicant in the amount of One
Million Two Hundred Twelve Thousand Four Hundred Sixty Eight and 06/100 U.S.
Dollars ($1,212,468.06) available for payment at sight by your draft drawn on us
when accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ______________________ U.S. Dollars
($____________) under your Irrevocable Standby Letter of Credit No.
____________________ represents funds due and owing to us as a result of
the Applicant's failure to comply with one or more of the terms of that
certain lease by and between EOP-Buckhead, L.L.C., as landlord, and
Viewlocity, Inc., as tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it
will be considered automatically renewed for a one year period upon the
expiration date set forth above and upon each anniversary of such date, unless
at least sixty (60) days prior to such expiration date or applicable anniversary
thereof, we notify you in writing by certified mail, return receipt requested,
that we elect not to so renew this Irrevocable Standby Letter of Credit. A copy
of any such notice shall also be sent to: Equity Office Properties Trust, ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Treasurer. In
addition, provided that you have not provided us with written notice of
Applicant's default under the above referenced lease prior to the effective date
of any reduction, the amount of this Irrevocable Standby Letter of Credit shall
automatically reduce in accordance with the following schedule:
EFFECTIVE DATE OF REDUCTION NEW REDUCED AMOUNT OF LETTER OF CREDIT
OCTOBER 15, 2002 $969,974.45
OCTOBER 15, 2003 $727,480.84
OCTOBER 15, 2004 $484,987.23
OCTOBER 15, 2005 $242,493.62
OCTOBER 15, 2006 $0.00
In addition to the foregoing, we understand and agree that you shall be entitled
to draw upon this Irrevocable Standby Letter of Credit in accordance with 1. and
2. above in the event that we
60
elect not to renew this Irrevocable Standby Letter of Credit and, in addition,
you provide us with a dated statement proportedly signed by one of Beneficiary's
officers stating that the Applicant has failed to provide you with an acceptable
substitute irrevocable standby letter of credit in accordance with the terms of
the above referenced lease. We further acknowledge and agree that: (a) upon
receipt of the documentation required herein, we will honor your draws against
this Irrevocable Standby Letter of Credit without inquiry into the accuracy of
Beneficiary's signed statement and regardless of whether Applicant disputes the
content of such statement; (b) this Irrevocable Standby Letter of Credit shall
permit partial draws and, in the event you elect to draw upon less than the full
stated amount hereof, the stated amount of this Irrevocable Standby Letter of
Credit shall be automatically reduced by the amount of such partial draw; and
(c) you shall be entitled to assign your interest in this Irrevocable Standby
Letter of Credit from time to time without our approval and without charge. In
the event of an assignment, we reserve the right to require reasonable evidence
of such assignment as a condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform
Customs and Practice for Documentary Credits (1993 revision) ICC Publication No.
500.
We hereby engage with you to honor drafts and documents drawn under and
in compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter
of Credit must be addressed to our office located at
______________________________________________ to the attention of
________________________________________.
Very truly yours,
__________________________
__________________________
[NAME]
__________________________
[TITLE]
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EXHIBIT G
CRITICAL DATE SCHEDULE
CRITICAL DATE ACTUAL DATE
------------- -----------
1. Equity releases Architect to commence preparation of Construction
Drawings Done
--------------------- ---------------------
2. Customer supplies Architect final, approved finish selections 8/13/99
--------------------- ---------------------
3. Architect completes Construction Drawings
8/27/99
--------------------- ---------------------
4. Equity and Customer approve Construction Drawings. Construction
Release forwarded to TI and PM 8/30/99
--------------------- ---------------------
5. Equity substantially completes construction 10/14/99
--------------------- ---------------------
6. Premises ready for Customer to begin furniture installation 10/15/99
--------------------- ---------------------
7. Move-in date 10/15/99
--------------------- ---------------------
After commencement of construction drawings (step 1 above), Customer (tenant)
driven changes to the approved space plans, or to the construction drawings in
process, will be handled as follows:
a. Tenant will be responsible for the costs of additional drawings
necessary to evaluate pricing alternates.
b. Tenant will be responsible for any additional costs associated
with revising construction documents to reflect changes.
c. Tenant will be responsible for any delay in the above schedule.
d. Tenant will be billed for the cost of the changes plus an
additional 17% project management fee.
62